■^ 


\ 


\ 


".    U  .U 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


-i^.-^vv•> 


«  s  V 


.  t;^.:.^^.^^.  >**»-^^f»^ 


4^^<. 


VALUABLE  LAW  BOOKS 

PUBLISHED     BY 

KAY  &  BROTHER,  PHILADELPHIA; 

AND 

C.  H.  KAY,  PITTSBURGH. 
I. 

PE?TOOSE  &  WATTS'S  REPORTS  OF  THE  SUPREME  COURT  OP 
PENNSYLVANIA  ;  3  Vols,  8vo,  calf  or  sheep. 

II. 

WATTS'S  REPORTS  OF  THE  SUPREME  COURT  OF  PENNSYLVA- 
NIA ;  10  Vols,  8vo,  calf  or  sheep. 

III. 

WATTS  &  SERGEANT'S  REPORTS  OF  THE  SUPREME  COURT  OF 
PENNSYLVANIA;  9  Vols,  8vo,  calf  or  sheep. 

IV. 

MILES'S  REPORTS  OF  THE  DISTRICT  COURT  OF  PHILADELPHIA; 

2  Vols,  8vo,  sheep. 

V. 

BALDWIN'S  REPORTS  OF  THE  UNITED  STATES'  CIRCUIT  COURT 
FOR  PENNSYLVANIA  AND  NEW  JERSEY ;  Vol.  I.,  8vo,  calf 

\i. 

BALDWIN  ON  THE  CONSTITUTION  OF  THE  UNITED  STATES ; 
8vo,  sheep. 

VII. 

CHIEF  JUSTICE  MARSHALL'S  DECISIONS  IN  THE  UNITED  STATES- 
CIRCUIT  COURT  FOR  VIRGINIA  AND  NORTH  CAROLINA.  Edited 
by  John  W.  Brockenbrough  ;  2  Vols,  8vo,  sheep. 

viii. 

SERGEANT  ON  THE  LAND  LAWS  OF  PENNSYLVANIA;  8vo,  sheep. 

IX. 

SERGEANT  ON  THE  LAW  OF  FOREIGN  ATTACHMENT  IN  PENN- 
SYLVANIA.    Second  Edition ;  8vo,  sheep. 

X. 

SERGEANT  ON  THE  MECHANICS'  LIEN  LAW  OF  PENNSYLVANIA; 

12mo,  sheep. 

XI. 

DUANE  ON  THE  LAW  OF  LANDLORD  AND  TENANT  IN  PENN- 
SYLVANIA; 12mo,  sheep. 

XII. 

WRIGHT'S  PENNSYLVANIA  CONSTABLES'  MANUAL :  A  Practical 
Digest  of  the  Laws  of  Pennsylvania  relating  to  the  Office  and  Duties  of  a 
Constable ;  12mo,  sheep. 

XIII. 

THE  PENNSYLVANIA  CONSTABLES'  GUIDE;  being  a  Treatise  on  the 
Duties  of  Constables  in  the  State  of  Pennsylvania.  By  L.  E.  De  Wolf  ;  IStno, 
sheep. 


VALUABLE  LAW  BOOKS  PLBIJSIIED  BY  KAY  AND  BROTHER. 

XIV. 

BL\NS'S  MAGISTRATES'  DAILY  COMPANION:  A  Treatise  on  the  Office 
and  Duties  of  Aldermen  and  Justices  of  the  Peace  in  Pennsylvania.  This 
Work  includes  all  the  requn^ed  Forms  of  Process  and  Docket  Entries;  it  also 
contains  the  Law  of  Landlord  and  Tenant,  and  General  Agents ;  8vo,  sheep. 

XV. 

LIVINGSTON'S  CRIMINAL  CODE ;  8vo,  sheep. 

XVI. 

SMITH  &  REED'S  LAWS  OF  PENNSYLVANIA,  commencing  14th  Ocio- 
ber,  1700 ;  10  Vols,  8vo,  sheep. 

N.  B. — Tlie  8th,  9th,  and  10th  Volumes  are  sold  separately. 

XVII. 

WHARTON'S  PRECEDENTS  OF  INDICTMENTS  :  Precedents  of  Crimi- 
nal  Pleading  in  the  United  States,  embracing  Indictments  at  Common  Law, 
and  under  the  Statutes  of  the  several  States.  By  Francis  Wharton,  Author 
of  a  Treatise,  on  American  Criminal  Law ;  8vo,  sheep. 

XVIII. 

BRIGHTLY  ON  COSTS :  A  Practical  Treatise  on  the  Law  of  Costs  in  Penn- 
sylvania ;  with  the  Fee  Bill,  and  Decisions  of  the  Courts  thereon ;  and  a  View 
of  the  Remedies  for  taking  Illegal  Fees;  8vo,  sheep. 

XIX. 

BINNS'S  PENNSYLVANIA  JUSTICE;  8vo,  sheep. 

XX. 

GRAYDON'S  FORMS  OF  CONVEYANCING,  AND  OF  PRACTICE  IN 
THE  COURTS  OF  COMMON  PLEAS,  QUARTER  SESSIONS,  OYER 
AND  TERMINER,  THE  SUPREME  AND  ORPHANS'  COURTS.  Se- 
cond Edition,  Revised  and  Enlarged ;  8vo,  sheep. 

XXI. 

HOOD  ON  THE  LAW  OF  EXECUTORS,  ADMINISTRATORS,  AND 
GUARDIANS  IN  PENNSYLVANIA;  8vo,  sheep. 

XXII. 

ROBERTS'S  DIGEST  OF  SELECT  BRITISH  STATUTES  IN  FORCE 
IN  PENNSYLVANIA.    Second  Edition,  Revised  and  Enlarged  ;  8vo,  sheep. 

XXIII. 

WHARTON'S  AMERICAN  CRIMINAL  LAW:  A  Treatise  on  the  Criminal 
Law  of  the  United  States,  comprising  a  Digest  of  the  Penal  Statutes  of  the 
General  Government,  and  of  Massachusetts,  New  York,  Pennsylvania,  and 
Virginia:  with  the  Decisions  on  Cases  arising  upon  those  Statutes;  and  the 
English  and  American  Authorities  upon  Criminal  Law  in  general.  By  Francis 
Wharton;  8vo,  sheep. 

XXIV. 

NEW  LIBRARY  OF  LAW  AND  EQUITY.  Edited  by  F.  J.  Troubat, 
Judge  Lfavis,  and  Wilson  M'Candless.  Published  in  Monthly  Octavo  Num- 
bers of  160  pages,  at  the  low  price  of  $7  per  annum. 

XXV. 

THE   COMPLETE  ACTS  OF  THE  GENERAL  ASSEMBLY  OF  PENN- 
SYLVANIA :  From  the  year  1800  to  the  present  time ;  in  ;J7  Volumes. 
N.  B. — This  Work  is  nearly  out  of  print. 

XXVI. 

DEBATES  AND  PROCEEDINGS  OF  THE  CONVENTION  TO  AMEND 
THE  CONSTITUTION  OF  PENNSYLVANIA,  in  the  years  1837  and 
ia38;  UVoIp.  8vo. 


PRECEDENTS 


OF 


INDICTMENTS  AND  PLEAS, 

ADAPTED  TO  THE  USE 

BOTH  OF 

THE  COURTS  OF  THE  UNITED  STATES 

AND    THOSE   OF    ALL 

THE  SEVERAL  STATES: 

TOGETHER    WITH 

NOTES 

ON  CRIMINAL  PLEADING  AND  PRACTICE, 


EMBRACING 


THE  ENGLISH  AND  AMERICAN  AUTHORITIES  GENERALLY. 


BY 


FRANCIS  WHARTON, 

in 

AUTHOH  OF  A  TREATISE  ON  AMERICAN  CRIMINAL  LAW, 
9 


,/.^' 


PHILADELPHIA: 
JAMES  KAY,  JUN.  &  BROTHER,  183^  MARKET  STREET, 

LAW    BOOKSELLERS    AND    PUBLISHERS. 

1849. 


T 


Entered  according  to  the  Act  of  Congress,  in  the  year  1848,  by  James  Kay,  Jun.  and 
Brother,  in  the  Office  of  the  Clerk  of  the  District  Court  of  the  United  States  in  and  for 
the  Eastern  District  of  Pennsylvania. 


»N  \ 


PREFACE 


On  submitting  to  the  profession,  in  1846,  a  Treatise  on  American 
Criminal  Law,  my  first  design  was  to  have  annexed  to  it  a  Collection 
of  Precedents  of  Indictments  and  Pleas,  suited  to  the  use  of  practition- 
ers throughout  the  Union.  The  great  number  of  forms,  however, 
which  the  varying  systems  of  the  federal  and  state  courts  made  neces- 
sary, and  the  large  amount  of  notes  called  for  both  by  the  newness  of 
the  material  and  by  the  increasing  intricacy  of  criminal  pleading,  led 
to  a  variation  from  my  original  plan.  The  forms  which  are  now 
presented,  may  be  considered  under  three  classes :  first,  those  which 
have  been  directly  sustained  by  the  courts;  second,  those  which  have 
been  prepared  by  eminent  pleaders,  but  which  have  not  been  judi- 
cially tested  ;  and  third,  those  which  have  been  drawn  from  the  Eng- 
lish books.  Those  composing  the  first  class,  wherever  the  pleading 
in  the  particular  case  is  not  set  out  in  the  report,  have  been  made  up 
by  recourse  to  the  records  of  the  court  in  which  the  trial  took  place.  In 
preparing  the  second,  I  have  to  acknowledge  my  indebtedness  to  the 
printed  volume  of  Mr.  Daniel  Davis,  for  many  years  Solicitor-General 
of  Massachusetts,  and  to  a  manuscript  collection,  begun  in  1778  by 
Mr.  Bradford,  Attorney-General  successively  of  Pennsylvania  and  of 
the  United  States,  and  continued  by  Mr.  J.  D.  Sergeant,  Mr.  Jared 
Ingersoll,  Mr.  Charles  Lee,  Mr.  Rawle,  Mr.  A.  J.  Dallas  and 
Mr.  Rush,  who  were  either  his  cotemporaries  or  his  immediate  succes- 
sors in  the  state  or  federal  prosecutions.  In  selecting  the  forms 
which  fall  under  the  third  head,  I  have  relied  chiefly  on  the  treatises 
of  Mr.  Starkie,  Mr,  Archbold  and  Mr.  Dickinson,  introducing  in 
addition  a  series  of  indictments,  which  have  been  sustained  by  the 
English  courts  since  the  date  of  those  publications. 

In  the  first  book  is  given  a  general  form  of  indictment  with 
caption,  commencement  and  conclusion,  adapted  to  the  federal 
courts  and  to  those  of  the  several  states;  and  to  each  averment  in 
the  text  is  attached  a  note  incorporating  the  doctrine  bearing  upon 


GG8141 


IV  PREFACE. 

it.  The  indictments  relating  to  each  individual  offence  are  in  like 
manner  preceded  by  a  general  preliminary  form,  to  which  are  ap- 
pended notes  divided  on  the  same  principle  of  analysis.  On  such  a 
plan,  the  duty  of  the  Editor  is  first  to  separate  the  authorities,  English 
and  American,  into  compartments  corresponding  in  subject  matter 
with  the  several  averments  in  the  indictment,  and  then  to  connect 
with  each  of  them,  in  the  order  in  which  they  stand,  its  own  particu- 
lar portion  of  commentary.  It  is  plain,  that  the  value  of  a  work  thus 
prepared  must  depend  upon  the  fidelity  with  which  both  in  text  and 
note  the  settled  law  is  observed  ;  and  I  have  thought  it  judicious, 
therefore,  when  referring  to  the  English  learning,  to  depend  chiefly 
on  the  expression  given  to  it  by  the  recognized  English  commenta- 
tors. On  this  principle,  I  have  placed  great  reliance  on  the  very 
elaborate  and  lucid  notes  by  Mr.  Serjeant  Talfourd  to  Dickin- 
son's Quarter  Sessions,  many  of  which  I  have  incorporated  at  large, 
and  which  may  be  safely  referred  to,  as  containing  not  only  the  most 
modern  but  the  most  succinct  exposition  of  English  crown  law.  I 
should  be  doing  great  injustice,  also,  not  only  to  myself,  but  to  others 
to  whose  prompt  and  intelligent  kindness  I  am  under  the  strongest 
obligations,  did  I  withhold,  at  the  close  of  this  undertaking,  my 
thanks  to  the  many  professional  brethren,  both  here  and  throughout 
the  Union,  from  whom  I  have  received  aid  during  its  progress. 

Philadelphia,  November,  1848. 


TABLE   OF   CONTENTS. 


BOOK   THE   FIRST. 

GENERAL    FORM    OF    INDICTMENT. 

Page. 
Chapter  I.  Caption, 1 

II.  General  Frame  of  Indictment  at  Common  Law,      •         -         5 
III.  Commencements  and  Conclusions  in  the  Federal  and  State 

Courts,  -         -         -         -         -         -         -         -         -       14 

BOOK  THE   SECOND. 


ACCESSARIES, 


32 


BOOK   THE   THIRD. 


OFFENCES    AGAINST    THE    PERSON. 


CriAPTEK  I.  Homicide, 42 

II.  Rape, 101 

III.  Sodomy, 102 

IV.  Mayhem, 102 

V.  Abduction  and  Kidnapping, 107 

VI.  Abortion, 108 

VII,  Assaults, 114 

BOOK  THE   FOURTH. 


OFFENCES    AGAINST     PROPERTY. 


Chapter  I.  Forgery,    ...... 

-     129 

II.  Burglary,  ...... 

-     180 

III.  Arson, 

.     183 

IV.  Robbery, 

.     189 

V.  Larceny, 

.     190 

VI.  Receiving  Stolen  Goods,      .         .         -         . 

-     201 

VI 


TABLE  OF  CONTENTS. 


Page. 

Chap.    VII.  Embezzlement, 204 

VIII.  Malicious  Mischief, 212 

IX,  Forcible  Entry  and  Detainer, 217 

X.  Cheats. 

Cheats  at  Common  Law, 224 

False  Personation  of  Bail,     .....  229 

Secreting  Goods  with  intent  to  Defraud  Creditors,  -  229 

Fraudulent  Insolvency  in  Pennsylvania,          -         -  233 

Violation  of  Factor  Law, 237 

Obtaining  Goods  by  False  Pretences,      -         -         -  239 

XI.  Destroying  a  Vessel  at  Sea,  &c.,           ....  274 

BOOK   THE   FIFTH. 


OFFENCES    AGAINST    SOCIETY. 

Chapter  I.  Perjury, 278 

II.  Conspiracy,        ........     330 

III.  Nuisance, 402 

IV.  Riot,    Affray,    Tumultuous    Conduct,    Rescue,     Prison 

Breach,  &c.,  Resistance  to  and  Assaults  on  Officers  of 

Justice, 487 

V.  Compounding  Felony, 514 

VI.  Misconduct  in  Office;  including  Extortion,  Neglect  of 
Duty,  Escape,  and  Cruelty  to  Seamen,  Children  and 
Paupers,  ........     516 

VII.  Libel, 544 

VIII.  Offences  against  Foreign  Ministers,  ....  574 
IX.  Bigamy,  Adultery  and  Fornication,  ....  581 
X.  Forestalling,  Holding  Illegal  Vendue,  Maintenance,  Bri- 
bery, Corruption  and  Double  Voting  at  Elections, 
Betting  at  Elections,  Embracery,  Betting  at  a  Horse 
Race,  Winning  Money  at  Cards,  Breach  of  the  Pilot 
Laws  in  Massachusetts,   ......     587 

XI.  Challenging  to  Fight, 600 

XII.  Attempts  and  Solicitations  to  Commit  Offences,      -         -     604 

XIII.  Revolt,  Piracy,  and  Violation  of  the  Laws  Concerning 

the  Slave  Trade, 608 

XIV.  Olfcnccs  against  the  Post  Office  Laws  and  Revenue  Laws,     627 
XV.  Treason, 636 


BOOK   THE   SIXTH 


ri.EAS, 


655 


TABLE   OF   CASES. 


A  CK  WORTH  V.  Kempe,  1  Dougl.  40,  668 

Alexander  v.  Angle,  1  C.  &.  J.  143,  547-8 

Allen  V.  Com.,  2  Bibb  '210,  30 

"     V.  Ormond,  8  East  4,  n.  459 

"      V.  VVestley,  Hetlcy  97,  309 

Anderson  v.  State,  5  Pike  445,  31,  43 

Aspinall  V.  Brown,  3  T.  R.  265,  459 

Aylett's  case,  1  T.  R.  66,  306 


B 


Bailey  v.  Com.,  5  Rawle  59,  520 

Baker  V.  State,  4  Pike  56,  12 

Baldwin  v.  Elphinston,  Bla.  R.  1037,      552 
Barhani's  case,  4  Co.  20,  a.  547-54 

Barlow  v.  Buteman,  3  P.  VVms.  64,  5 

Beauchamp  v.  State,  6  Blackf.  304,  2 

Bennet  V.  State,  4  Rice  340,  218 

Belterton's  case,  5  Mod.  142,  423 

Blake's  ease,  3  Leon.  268,  524 

Bliss  V.  Hall,  4  Bing.  N.  C.  185  ;  5  Scott 

500,  422 

Bloss  V.  Tobey,  2  Pick.  320,  547 

Bond  V.  Ward,  7  Mass.  123,  667 

Boston  Glass  Co.  v.  Binney,  4  Pick.  425,  385 
Boyle  V.  Com.,  2  S.  &  R.  40,  99,100 

Bradley  v.  State,  1  Walker  156,  547 

Brigfgs  V.  Bowgin,  1  N.  R.  355,  115 

Britain  v.  Doylcstown  Bank,  5  W.  &, 

S.  99,  514 

V.  State,  3  Humph.  203,  423 

Biockway  v.  People,  2  Hill  558,  423 

Brooks  V.  State,  2  Yerg.  482.  402,  423 

Brown  v.  Com.,  2  Leigli  76J,  130 

"      V.      "      8  Mass.  59,  163-4 

Browne's  case,  1  Grecnl.  177,  18,  213 

Bucher  v.  Jarrett,  3  B.  &,  P.  143,         132, 

545-46 
Buck  V.  State,  2  Har.  &  J.  426,  13 

Buckland  v.  Com.,  8  Leigh  732,  133 

Bufman's  case,  8  Grecnl.  113,  18 

Burd  V.  Com.,  6  S.  &,  R.  252,  219 

Burk  V.  State,  2  Har.  &  J,,  426,  333 

Burr's  case,  4  Crancii  502,  32 

Buzby  V.  Watson,  Bla.  R.  1050,  10 

Butler  V.  Slate,  5  Blackf.  280,  481 


Cain  V.  State,  4  Blackf.  512,  28 

Caldwell's  case,  1  Dall.  150,  422 

Campbell  v.  People,  8  Wend.  636,     279-80, 

307 
Gary  V.  State,  3  Port.  186,  13 

Carlisle's  case,  1  Dall.  35,  637 

Carlton  V.  Com.,  5  Mete.  532,  13 

Cartwright  v.  Wright,  1  D.  &.  R.  230, 

545, 547 
Chanit  v.  Parker,  1  Rep.  Conn.  Ct.  33.3,  32 
Channel's  case,  Stra.  793,  225 

Chapman  v.  Com.,  5  Whart.  427,       23,  ld7 
Clement  v.  Fisher,  7  B.  &.  C.  459 ;  1 

Man.  &  Ry.  281,  547-548,  515 

Clifford  V.  Brandon,  2  Campb.  369,  331,3:^8 
Cohens  v.  Virginia,  6  Wheat.  265,  4^1 1 

Coit  V.  Starkweather,  8  Conn.  280,  7 

Comfort  V.  Com.,  5  Whart.  437,  508 

Conelly  v.  State,  3  Scam.  477,  127 

Cornell  v.  State,  Mart.  &.  Yerg.  147,       430 
Collins  V.  Biantern,  2  Wills.  341,  349      514 
"      V.  Com.,  3   S.  &  R.  220,     342-43, 

345 

Cortizos  V.  Munos,  Stra.  924,  8 

Cotton's  case,  Cro.  Eliz.  7.39,  75 

Cox's  case,  Leach  691,  303 

Grain  v.  State,  2  Yerg.  390,  30 

Cress  V.  State,  1  Port.  83,  ]91 

Cross  V.  Peters,  1  Greenl.  367,  224 

Cruiser  v.  State,  3  Harrison  206,  218 

Cummins  v.  State,  1  Har.  &,  J.  340,        2U2 

Cuppeldick's  case,  cited  9  Moore  19,  71 

Curlin  v.  State,  4  Yerg.  143,  32 

Curtis  V.  Curtis,  10  Biiig.  447,  547 

Com,  V.  Adams,  7  Mete.  50,  134 

"     V.  Alburgcr,  1  Whart.  469,  422 

"     V.  Alexander,  1  Va.  Cases,  156,       51!> 

"     V.  Andrews,  2  Mass.  14,  202 

"     V.         »         3  .Mass.  126,  32 

"     V.  Arnold,  4  Pick.  251,  44i) 

"     V.  Biigly,  7  Pick,  279,  241 

"     V.  Bailv,  1  Mass.  62,  545,  130-33 

"     V.  Baird,  4S.  &,  R.  141,  475 

"     V.  Bangs,  9  Mass.  387,  109 

"     V.  Barlow,  4  Mass.  439,  126 

"     V.  Bennett,  2  Va.  Cases,  235,  1 01 

"     V.  Bolkom,  3  Pick.  281,  440 


vm 


TABLE  or  CASES. 


Com.  V,  Bowpn,  13  ATmss.  357,  38 

"  V.  Bowman,  3  Barr  :2U3,                    412 

"  V.  Biumenthal,  MS.,                         242 

"  V.  Bnggs,  5  Pick.  429,                      32 

"  V.         "11  Mete.  573,                 468 

"  V.  Brown,  3  Rawlc  207,                   181 

"  V.  Bryden,  9  Mete.  137,                    472 

"  V.  Buckingham,  Thacher's  C.  C. 

29,         131,  545-47 

"  V.            "            2  Wheel.   C.   C. 

182,  20 

"  V.  Burdick,  2  Barr  163,                    257 

»  V.  Burns,  4  J.  J.  Marsh.  182,             32 

"  V.  Caldwell,  14  Mass.  330,                  20 

"  V,  Calef,  10  Mass.  153,                     454 

"  V.  Call,  21  Pick.  515,     6,241,251-55, 

584 

"  V.  Canfield,  MS.,                                486 

"  V.  Carey,  2  Pick.  47,                         164 

"  V.  Catlin,  1  Mass.  8,             453-54-55 

"  V.  Chase,  9  Pick.  15,                         191 

"  V.  Church,  1  Barr  105,                     416 

"  V.Churchill,  2  Melc.  119, 125,  469-71 

«  'v.  Clapp,  5  Pick.  41,                         481 

"  V.  Clapp,  4  Mass.  163,                      550 

"  V.  Clark,  2  Ash.  105,                           99 

«  V.  Clary,  4  Barr  210,        336,  339,  369 

"  V.  Clew,  5  Rawie  498,                       666 

"  V.  Collins,  3  S.  &  R.  220,                 336 

"  V.  Conine,  MS.,                                  486 

"  V.  Cook,  1  Robinson  729,                 283 

»  V.  Cooley,  10  Pick.  37,               20,  478 

»  V.  Conner,  2  Va.  Cases  30,                278 

"  V.  Cunningham,  13  Mass.  245,        661 

"  V.  Dana,  2  Mete.  329,                       482 

"  V.  Daniels,  MS.,                                 259 

"  V.         "        2  Va.  Cases,  402,     24,  493 

"  V.  Dedham,  16  Mass.  146,                     8 

"  V.  Deniain,  6  Pa.  L.J.  29,     13,  109, 

366 

"  V.  Demuth,  12  S.  &,  R.  389,               5 

"  V.  Depuy,  6  Pa.  L.  J.  223,               489 

"  V.  Drew,  19  Pick.  184,                     239 

»  V.  Drum,  19  Pick.  479,                     334 

"  V.  Dudley,  10  Mass.  403,                 218 

"  V.  Dyoll."5  Whart.  67,                      234 

«  V.  Earlo,  1  Whart.  525,                      64 

"  V.  Eaton,  15  Pick.  273,              481-84 

"  V.  Eherle,  Pamph.,  3  S.  &.  R.  218, 

336,  33d,  365 

"  V.  Eckcrt,  2  Browne  251,                 213 

"  V.  El  well,  2  Mete.  190,                6,584 

"  V.  Eyre,  1  S.  &  R.  347,                    114 

"  V.  Faris,  5  Rand.  691,                      402 

"  V.  Feeley,  2  Va.  Cases  1,                  326 

"  V.  Field,  13  Mass.  321,                     512 

"  V.  Foster,  1  Mass,  489,                      512 

"  V.  Fuller,  8  Mete.  313,                     177 

"  V.  Gallagher,  6  Mete.  6.'">6,                1H9 

"  V.  Gillespie,  7  S.  &  R.  469,    6,  10,  13, 
32,  130-31,  333-36-37,  363,  4H1- 
82,  486,  545 

"  V.  Coding,  3  Mctc.  130,                    440 

"  V.  (Joodciiough,  Thacher's   C.  C. 

i:i2,  136 

"  V.  Goo<liiue,  2  .Mete.  193,                 334 


Com.  V.  Gowcn,  7  Mass.  378,  411 

!.  Gregory,  2  Dana  417,  12,  30 

^  Haines,  6  Pa.  L.  J.  232,  43 

r.  Harley,  7  Mete.  462,  6,  241,  255 
r.  Harney,  10  Mete.  421,  lt:<7 

^  Harrington,  3  Pick,  26,  422-35 
r.  Hartman,  5  Barr  60,  334-38 

^  Hastings,  9  Mete.  259,  512 

^  Hay  ward,  10  Mass.  34,  130 

r.  Hearsey,  1  Mass.  137,  224-25 

^  Hollingsworth,  MSS.,  371 

^  Hope,  22  Pick.  1,  13 

;.  Hopkins,  2  Dana  420,  43H 

r.  Holmes,  17  Mass.  336,  545-46, 572 
^  Houghton,  8  Mass.  107,  153,163 
!.  Hoxey,  16  Mass.  385,  12,  20,  492 
!.  Hunt,  4  Mete.  125,  340,  382,  355 
r.  Hutchinson,  2  Pa.  L.  J.  242,  239 
?.  Judd,etal.,2  Mass. 329,  355,369,340 
^  Kearns,   1   Va.  Cases  169,    130-1, 

545 
/.  Kerrison,  MS.,  442 

?.  Kennard,  8  Pick.  133,  115,  501 
!.  Kent,  6  Mete.  221,  177,  7J 

f.  Kimball,  7  Mete.  304,  472 

V.  Kingsbury,  5  Mass.  106,  333-34 
,',  Kinsman,  MS.,  221 

;.  Knapp,  9  Pick.  496,  36 

/.  Kneeland,  20  Pick.  206,  241,  571 
f.  Knight,  12  Mass.  274,  278-79 

f.  Ladd,  15  Mass.  526,  130-34-:« 
f.  Leach,  I  Mass.  59,  212 

7.  Leonard,  8  Mete.  529,  468-69-70 
V.  Lewis,  I  Mete.  151,  7 

V.  M'Atce,  8  Dana  28,  32,  130 

I'.  M'Crossin,  3  Pa.  L.  J.  219,  241 

/.  M'Dowell,  1  Browne  349,  197 

V.  M'Kisson,  8  S.  &  R.  420,  336,  342 
/.  M'Mickle,  MS.,  195 

V.  .Macombcr,  3  Mass.  254,  32 

V.  Major,  6  Dana  293,  32 

i'.  Manley,  12  Pick.  173,  192 

V.  Martin,  2  Barr  244,  9 

V.  Mash,  7  Mete.  472,  581 

V.  Messingcr,  1  Binn.  274,  132 

V.  Mifflin,  5  W.  &  S.  461,  336,  379 
V.  Miliman,  13  S.  &  R.  403,  403 

V.  Moore,  G  Mctc.  243,  584 

V.  Morris,  1  Va.  Cases  176,  557 

p.  Morse,  14  Mass.  217,  192 

V.       "      2  Mass.  138,  224 

V.  Murray,  5  Leigh  720,  169 

V.  Neweli,  7  Mass.  245,  103 

V.  Northampton,  2  Mass.  116,  20 

V.  Odlin,  23  Pick.  275, 
V.  Parker,  9  Mete.  26.3, 
V.        "       Thacher's  C.  C.  224, 
V.  Parmentcr,   5   Pick.  279, 


,  Pease,  16  Mass.  91, 
Pendleton,  4  Leigh  694, 
Perkins,  1  Pick.  388, 
PhilJips,  16  Mass.  423, 
Poulson,  6  Pa.  L.  J.  272, 


468-71-72 

109 

210 

l.SU-l 

545 

514 

132,  516 

5,  7 

33 

243 


V.  Pray,  13  Pick.  359, 


423,  436,  4.'i7, 
472,  473 


TABLE  OF  CASES. 


IX 


Com. 


Ripley,  Thaclicr's  C.C.  67,    131-34 
Rogers,  5  S.  &,  R.  463,        23,  333, 


604 
148 
418 

489 
8 


545,  573 
596 
4!)0 
596 
7 
472 
478 
136 
191 
558 


209 

545 

130-33 

423 


Ross,  2  Mass.  373, 
Rupg-les,  10  Mass.  391, 
Runnels,  10  Mass.  518, 
Sayers,  8  Leigh  722, 
Searle,  2  Binn.  332,  24,  130-33, 
153,  545 
Sharpless,  2  S.  <fc  R.  91, 
Shaw,  7  Mete.  52, 
Sliouse,  5  Barr  83, 
Silsbee,  9  Mass.  417, 
Sims,  2  Va.  Cases  374, 
Simpson,  9  MetC.  138, 
Slack,  19  Pick.  304, 
Smith,  6  S.  &  R.  56^, 

"      I  Mass.  245, 
Snelling,  15  Pick.  321, 
Speer,  2  Va.  Cases  65,  224-25,  228, 
242 
Springfield,  7  Mass.  9,  10,  20 

Spring,  cited  3  Pa.  L.  J.  89,  241 
Squire,  1  Mete.  258,  126,  185 

Stearns,  10  Mete.  256,  177 

"        2  Mete.  343, 
Stephens,  2  Mete.  203, 

1  Mass.  203, 
Stewart,  1  S.  &  R.  343, 
Stockbridge,  11  Ma.ss.  279,  20,  .596 
Stone,  4  Mete.  43,     •  239-40 

Stow,  1  Mass.  54,^  130,  133,  545 
Stoweli,  9  Mete.  572,  440,  469-70 
Strafford,  MS.,  398,  559 

Strain,  10  Mete.  521,  262 

Sweeney,  10  S.  &  R.  173,  130,  545 
Swift  Run  Gap,  2   Va.  Cases 

362,  5 

Sylvester,  6  Pa.  L.  J.  283,  13,  33, 
337,  486 
Taylor,  5  Binn.  277, 
Teischer,  1  Dall,  355, 
Thayer,  5  Mete.  246, 
8  Mete.  521, 
Thurlow,  24  Pick.  374, 
Tibbetts,  2  Mass.  536, 
Tibbs,  1  Dana  524, 
Tilton,  8  Mete.  232, 
Tower,  8  Mete.  527, 
Tracy,  5  Mete.  536, 
Tuck,  20  Pick.  356, 
Tucker,  2  Pick.  64, 
Turner,  3  Mete.  19, 
Vandyke,  MSS., 
Vansyckle,  7  Pa.  L.  J.  82,  423,  525 
Wade,  17  Pick.  395,  183-85 

Ward,  1  Mass.  473,  336,  377 

Warren,  6  Mass. 72,  224-25, 337, 355 
Webb,  6  Rand.  726,  402 

White,  6  Binn.  183,  12,  45,  74 

"      10  Mete.  14,  468 

Whiteiicad,  2  Boston  Law  R. 

148,  604 

Wilgus,  4  Pick.  177,    239-40,  243, 

245 

,  Williamson,  9  Mete.  358,  197 

B 


216,218 
216 

469,  471 

469-70-71 

481 

330 

^-     504 

438 

468,471 
506 
198 
422 
107 
196 


C  om.  V.  Woodward,  Tliacher's  C.  C.  63,     32 
"     V.  Wood,  7  Law  Rep.  53,  332 


D 


Damarest  v.  Haring,  6  Cow.  76,  604 

Day  V.  Robinson,  1  Ad.  «Sl  E.  C.  554,  547 

Dean  V.  Com.,  3  S.  &,  R.  418,  219 

"     V.  State,  Mart.  &  Yerg.  127,  130 

Devoe  v.  Com.,  3  Mete.  316,  198 

Doe  V.  Cl^rk,  2  H.  Bl.  399,  109 

Douglas  V.  Com.,  8  Watts  5.3.5,  99 

Drinkwater  v.  Porter,  7  C.  &,  P.  181.  404 

Drury  v.  Desfontaines,  1  Taunt.  134,  445 

Dunaway  v.  State,  9  Yerg.  3.50,  423 

Duncan  v.  Com.,  4  S.  &,  R.  449,  9 

Dutton  V.  Tracy,  4  Conn.  78,  219 


E 


Edgecomb  v.  Ross,  5  East  298,  302,  514 

Edwards  v.  Com«^  19  Pick.  124,  J63 

Elkins  V.  State,  2  Hutnph.  543,  422 
Elliotson  V.  Fleetham,  2  Bing.  N,C.  134,  422 

Erskiiie  v.  Murray,  2  Ld.  Ruym.  1542,  7 

Estes  V.  State,  2  Humph.  469,  438 

Evans  v.  King,  1  PhiH.  R.  499,  5 


Fergus  v.  State,  6  Yerg.  345,  ,  1 1 

Fill  vv  Knight,  8  M.  &,  W.  276,  .5-26 

Figgins  V.  Cogswell,  3  M.  &.  S.  369,  11 

Fish  V.  Scott,  Pcake  C.  N.  P.  13.5,  115 
Filch  V.   Reinpublieam,  3  Yeates  49, 

,    S.  C;  4  Dall.  212,  221 

Flight  V.  Thomas,  1 0  A.  &,  E.  520,  422 

Fogg  V.  State,  9  Yerg.  3.^)2,  131 

Ford  V.  Bennett,  1  Ld.  Raym.  415,  545 

Forde  v.  Skinner,  4  C.  &  P.  539,  114 

Fowler  v.  State,  5  Day  81,  454 

Freleigh  v.  State,  8  Mo.  612,  481 

Fulwood's  case,  Cro.  Car.  483,  434 


G 


Gibson  V.  Com.,  2  Va.  Cases  111, 
Goldstein  V.  Foss,  9  D.  &.  R.  197, 
Goodhue  v.  Cord,  5  Mete.  553, 
Goodrich  v.  Wolcott,  3  Cow  p.  236, 
Grove's  case,  Sayer's  Rep.  206, 
Graffins  v.  Com.,  3  Pcnn.  R.  502, 
Gravely  v.  Ford,  I,d.  Raym.  1209, 
Green  v.  Goddard,  2  Sulk.  641, 
Greeson  v.  State,  5  How.  Miss.  R.  23, 
Gurner's  case.  Star  Chamber,  Mich.  9 
Jac.  L, 

H 

TIalsey's  case,  Latob  183, 
Ilanberric's  case,  Cro.  Eliz.  661, 


44 
547-48 
472 
547 
346 
402 
190 
115 

26 


309 


4.59 
J93 


TABLE   OF  CASES. 


33 
131 
212 
526 

25 
224 
604 
279 


Harding's  case,  I  Grecni.  22,  218, 220 

Hdrding  v.  Stokes,  Tyr.  &  Gr.  599,  9 

Hannan  v.  Com.,  12  S.  &,  R.  69, 13,101,  333 

Harris  v.  State,  3  Blackf.  386, 

Hart's  case.  Leach  172, 

Hawortii  v.  State,  Peck  89, 

Hawthorn  v.  Hammond,  C,  &  K.  434, 

Haslip  V.  State,  4  Hay.  273, 

Hiel  V.  State,  1  Yerg.  76, 

Higgin's  case,  2  East  R.  21, 

Hinch  V.  State,  2  Mo.  8, 

Hinton  v.  Heather,  Dickinson's  Q.  S. 

316,  115 

Hoffman  v.  Com.,  6  Rand.  685,  132 

Hogg  V.  State,  3  Blackf.  326,  192 

Hopkins  V.  People,  12  Wend.  76,  202 

Howe  V.  Hall,  14  East  275,  132,  545-46 
Hunter  v.  Com.,  2  S.  &  R.  298,  223, 433,  436 
Hurell  V.  State,  5  Humph.  68,  202 

Hutchins  v.  Com.,  2  Va.  Cases  332,         585 


Jacobs  V.  Com.,  5  S.  &,  R.  315,  9 

James  v.  Com.,  12  S.  &  R.  220,  457 

J'Anson  v.  Steward,  2  T.  R.  748,  457 

Jarvis  V.  Dean,  3  Bing.  448,  403 

Jasper's  case,  4  Dev.  R.  323,  493 

Jayne  v.  Price,  5  Taunt.  325,  219 

Jennings  v.  Com.,  17  Pick.  80,  422,432 

Johns  V.  Potter,  5  S.  &  R.  519,  230 

Johnson  v.  Stale,  2  Humph.  283,  115 
Jones  V.  Ashburnam,  4  East  R.  465,        480 

"      V.  Miicquillon,  5  T.  R.  195,  5 

Josslyn  V.  Com.,  6  Mete.  236,  13, 181 


K 


Kanavan's  case,  1  Greenl.  226,  478 
Kane  v.  People,  9  Wend.  203,     6, 13, 14,  22 

{For  King  v.,  &c,,  see  R,  v.,  &c.) 

King  V.  Baldock,  447 

"  V.  Bear,  2Salk.  417,  281,545 

"  V.  Bigg,  P.  Wms.  412,  130 

"  V.  Davlan,  306 

"  V.  Dclavel.  3  Burr.  143,  379 

"  V.  Eccles,  3  Dougl.  337,      340,  385-86 

"  V.  Fulk;r,  Mieh.,  I  Wm.&,  Mary,  540 

"  V.  Gill,  2  B  &  Ai.  204,  340 

"  V.  fJrcy,  3St.  Tr.  519,  379 

"  V.  Mig.Mns,  2  East  5,  435 

"  V.  Higginson,  2  Bard.  1232,  4.33 

"  V.  ll.iod,  Saycr's  Rep.  in  K.  B.  161,  218 

"  V.  How,  B.  R.  E.,  398 

"  ct  ux  V.  Jfibhcrt,  Skin.  387,  1 14 

"  V.  Kinncrsloy,  B.  R.  T.,  398 

"  V.  I.ora,  2  Ecaoh  739,  2.52 

«'  V.  Mimot,  15.  I{.  H.,  398 

"  V.  Parker,  2  C.  &,  P.  825,  257 

"  V.  I'hiliips,  6  East  461,  4.35 

«  V.  Siratlon,  I  Cainpl).  .549,  379 

••  V.  Turner,  13  Kasl  231,  386 

"  V.  WHtlHon,2  T.  R.  200,  546 

«  V.  Wilson,  8  D.  &  E.  357,  220 


King  V.  Young,  2  T.  R.  200,  546 

Kirk  V.  State,  6  Mo.  471,  200 

Kirkpatrick  v.  State,  6  Miss.  471 

Knowles  v.  State,  3  Day  103,  12,  20 


Lambert  v.  People,  7  Cow.  167,  9  Cow. 

578,  337,  224,  240,  331 

Lane  v.  Hegberg,  Bull.  N.  P.  19,  1 15 

Langdon  v.  Potter,  3  Mass.  215,  218 

Lansing  v.  Smith,  8  Cow.  146,  421 

Leech's  case,  Cro.  Jac.  167,  7 

Lee  V.  Clark,  2  East  333,  12 

"  V.  Risdon,  7  Taunt.  191,  191 

Leeds  v.  Shackerly,  Cr.  El.  751,  422 

Lithgon  V.  Com.,  2  Va.  Cases  296,  192 
Loomis  V.  Edgerton,  19  Wend. 419,    215-13 

Lynes  v.  State,  5  Port.  236,  8 

Lyon's  case,  Leacii  636,  130 

M 

M'Laughlin  v.  Com.,  4  R.  464,  197 

Marshall  v.  Homer,  4  Mass.  R.  63,  667 

Mason's  case,  Leach  548,  131 

Mee  V.  Reid,  Peake  23,  301 

Miller  v.  Maxwell,  16  Wend.  9,  547 

Mills  V.  Hall,  9  Wend.  315,  422 

Mitchell  V.  State,  8  Yerg.  515,  73 

Mitchell's  case,  2  East  P.  C.  80,  258 

Mix  V.  Woodward,  12  Conn.  262,  547 
Montgomery  v.  State,  Wilcox  220,     278-79 

Moody  V.  State,  7  Blackf.  424,  2 

Mooney  v.  Leach,  1  W.  Bl.  555,  668 

Moore  v.  Com.,  6  Mete.  243,  584 


N 


Newton  v.  Harland,  1  Man.  &  G.  644,     218 
Nixon  V.  Peoi)Ie,  2  Scam.  267,  119 

Nolan  V.  Mayor,  4  Yerg.  163,  423 

Norton  v.  Ladd,  5  N.  Ham  p.  203,  191 

"      V.  People,  8  Cow.  137,  32,192 


0 


Oakley  &  Whitleby's  case  in  K.  B,  20 

Jac. I.  309 

Ohio  V.  Hurley,  6  Ohio  R.  399,  28 

Oldficld  V.  Durham,  Sumn.,  MS,,  1811,    131 
Overshine  v.  Com.,  2  B.  Mon.  344,  477 


Pa.  V.  Bccomb,  Add.  386, 

Pa.  V.  Bell,  Add.  156, 

Pa.  V.  Elder,  1  Smith's  Laws  3, 

Pa.  V.  M'Birnie,  Add.  28, 

Pa.  V.  M'Koe,  Add.  2, 

Pa.v.  Misncr,  Add.  R.  44, 

Pell  V.  Provost,  2  Caines  165, 

Pendleton  v.  Com.,  4  Leigh  694, 


191 
2,  23,  45 

222 
103 
99 
135 
5 
132,  .547, 
516 
Phalen  v.  Com.,  1  Robinson  713,  714,      486 


TABLE  OF  CASES. 


XI 


Phillips  V.  Com.,  3  Mete.  588,  198 

Ponget  v.Toinkins,  1  Ph.  R.  499,  5 

Poole  V.  Huskinson,  11  M.  &  VV.  830,    404 

Pratt  V.  Hutchinson,  15  East  511,  587 

Prig's  case,  Alayn's  R.  12,  535 

Peo.  V.  Adams,  J  7  Wend.  475,      473-74-81 

"    V.  Anthony,  4  Johns.  R.  198,  219 

"    V.  Babcock,  7  Johns.  R.  201,      224-25 

"    V,  Badgely,  16  Wend.  53, 


V.  Barrett,  1  Johns.  R.  66, 
V.  Bush,  4  Hill  N.  Y.  R.  133, 

V.  Colt,  3  Hill  432, 
V.  Conyer,  Wheel.  C.  C.  449, 
V.  Croswell,  3  Johns.  C.  337, 
V.  Cunningham,  1  Dinio  524, 
V.  Curlinjr-;  1  Johns.  R.  320, 
V.  Davis,  2  Wend.  309, 
V.  Degev,  2  Wheel.  C.  C.  135, 
V.  Enoch,  13  Wend.  175, 
V.       "       13  Wend.  159, 
V.  Fisher,  14  Wend.  9. 
V,  Franklin,  3  Johns.  C.  299, 
V.  Genung,  11  Wend.  18, 
V.  Guernsey,  3  Johns.  C.  265, 
V.Hale,  1  "Wheel.  C.C.  174, 
V.  Haynes,  14  Wend.  546, 
11    '  "       563, 
V.  Hennessey,  15  Wend.  147, 
V.  Herring,  15  Wend.  87, 
V.  Holbrook,  13  Joi)ns.  R.  90, 
V.  Howell,  4  Johns.  R.  296, 
V.  Jackson,  3  Hill  93, 
V.         "        3  Denio  101, 
V.  Johnson,  12  Johns.  R.  292, 
V,  Kingslcy,  6  Cow.  522, 

V.  King,  2  Caines  98, 
V.  Mather,  4  Wend.  231, 
V.  Miller,  14  Johns.  371, 


132,  152 

545-46 

348 

338, 

604-05 

44 

2:w 

554 

403 

137 

136,  168 

493 

12 

20,45 

3b6-b9 

542 

243 

2,4 

269 

268 

242 

209 

243 

132 

6,  332 

113 

437 

132,  153, 

545 

220 

332,  334 

224-25 


Peo.  V.  Walbridge,  6  Cow.  512, 
"    V.  Warner,  5  Wend.  271, 


V.  Washburn,  10  Johns.  R.  160, 
V.  Wiley,  3  Hill  IN".  Y.  R.  194, 
V.      "      3  Hill  N.  Y.R.I 94, 
V.  Wright,  9  Wend.  193, 

R 


528 
131,260, 
295 
604 
712 
208 
130 


V.  M'K'innon,  I  Wheel.  C.  C.  170,      22     R 
V.  Oleott,  2  Johns.  C.  ,  301 

V.  Palmer,  10  Wend.  165,  192 

V.  Payne,  3  Denio  88,  4h2     R 

v.       "       6  Johns.  103,  191 

V.  Peabody,  25  Wend.  472,  136 

V.  Pettit,  3  Johns.  R.  511,  125 

V.  Phelps,  5  Wend.  10,  279 

V.  Rathbun,  21  Wend.  509,  136 

V.  Rickert,  8  Cow.  226,  219 

V.  Ruggles,  8  Johns.  R.  231,  571 

V.  Ryndcrs,  12  Wend.  425,  12,  137 
V.  Sands,  1  Johns.  R,  78,  425 

V.  Sergeant,  8  Cow.  139,  437 

V.  Shaw,  1  Caines  125,  220 

V.  Smith.  5  Cow.  2.58,  212 

V.  Stearns,  2  Wend.  409,  136,  154 

V.  Stone,  9  Wend.  182,  224,  241,  242 
V.  Sturdevani,  23  Wend.  418.  485 

V.  Taylor,  3  Denio  92,  481-82-^5 

V.  Tomkins,  9  Johns.  R.  70,  499,  600 
v.  Townsend,3  Hill's  R.  479,  419-27 
V.  Underwood,  16  Wend.  546,        229, 

338 
V.  Van  Blarcum,  2  Johns.  R.  105,    180 


Rasnick  v.  Com.,  2  Va.  Cases  356,  130 

Ream  v.  Com.,  3  S.  &,  R.  207,  1 39 

Resp.  v.  Arnold,  3  Yeates  203,         411,  416 

"     V.Campbell,  1  Dull.  354,  219 

"     V.  Carlisle,  1  D;ill.  35,  565,  640 

"     V.  De  Long  Champs,  1  Dall.  HI,    576 

"     V.  Dowell,  1  Dull.  47,  225 

"     V.  Hevice,  2  Yeatcs  14,  13,  381 

"     v.  Honeyman,  2  Dall.  228,  44 

"     V.  Langcako,  1  Yeates  415,  104 

"     V.  Newell,  3  Yeates  407,    12,  23,  278, 

279,  2»0,  300 

"     V.  Schryber,  1  Dall.  68,  218,221 

"     V.  Sweers,  i  Dull.  41,  137-38 

»     V.  Teischer,  1  D,.ll  335,  2 12 

Reynolds  v.  State,  2  N.  &  M'C.  365,       428 

Rogers  v.  Com.,  5  S.  &,  R.  463,  128 

Roosvelt  V.  Gardiner,  2  Cow.  463,  6 

Rose  v.  Groves,  |{.  L.  J.  (C.  P.  2.52),       459 

Ross  V.  State,  9  Mi.«s.  696,  8 

Roubattel's  case,  I  Lew.  83,  452 

Rouse  V.  Bardin,  1  H.  Bla.  281,  459 

Rushworth's  case,  R.  Hi.  R.  318,  239 

Russel  V.  Com.,  7  S.  &.  R.  4-9,  23 

"       V.  Devons,  2  T.  R.  459,  667 

R.  V.  Ady,  7  C.  &  P.  140,  240-41 

R.  V.  Airey,  2  Eiusl  30,  241-43 

R.  V.  Alison,  8  C.  &  P.  418,  .  66 

R.  v.  Allen,  1  :\Iood,  C.  C.  179,  9  C.  &      , 

P.  521,  101 

R.  v.  Andrews,  C.  &  K.  77,  12 

Arnhope,  Trcm.  91,  226 

R.  v.  Ashley,  1  C.  &  K.  198,  192 

R.  V.  Ashmall,  9  C.  &.  P.  ?36,  112 

Atkinson,  Cro.  Circ.  Assist.  437,      10, 

282 
R.  V.  Bake,  3  Burr.  R.  1731,  218,  220 

R.  v.  Balmc,  Cow.  650,  525 

R.  V.  Barnoldswich,  12  L.  J.  (M.C.)  44,  458 
R.  V.  Barret,  4  M.  &  S.  272,  428 

R.  V.  Barker  and  others.  C.  &-  P.  442,  6 

R.  v.  Barnard,  7  C.  &  P.  784,  239 

R.  V.  B^irton,  1  .Mood   C.  C.  141,  135 

R.  V.  Bathurst,  Say.  R.  305,  220 

R.  v.  Beucall,  I  Mood.  C.  C.  15,  192 

R.  V.  Bear,  Carth.  408,  131 

R.  v.  Beech,  1  Leach  C.  C. 137, 159,  71, 131 
R.  V.  Benfield,2  Burr.  R.  980,  0,  614 

R.  v.  Berriman,  5C.  &  P.  601,  11 

R.  V.  Best,  9  C.  &.  P.  368,  514-15 

R.  V.    "      2  Ld.  Raym.  1167;  1  Snlk. 

174,  346,  .3!I4 

R.  v.  Betsworth,  Trem.  93,  226 

R.  v.  Biers,  1  A.  &  E.  327  ;  3  N.  &  M. 

475,  334-36-41 

R.  V.  Bigg,  3  P.  Wms.  419,  141 


Xll 


TABLE  OF  CASES. 


R.  V.  Billingham,  2  C.  &,  P.  234,  115 

R.  V.  Birch,  Leach  92,  133 

R.  V.  Bird,  9  C.  &,  P.  44,  199 

R.  V.  Birkett,  R.  &,  R.  251  ;  1  C.  &  P. 

216,  133,  190 

R.  V.  Birmingham,  9  C.  &  P.  409,  459 

R.  V.  Birt,  5C.  &,P.  154,  4^8-89 

R.  V.  Bishop,  1  A.  &  E.  744,  461 

R.  V.      "        1  C.  &  M.  3U2,  279 

R.  V.  Biss,  8  C.  &  P.  773,  fl 

R.  V.  Blake,  6  A.  &-  E.,  N.  S.,  126,  320 

R.  V.      "     13  Law  J.,  N.  S.,  M.  C.  131, 

2  B.  R.  126,  33U,  341-42 

R.  V.  Blea,  8C.  &P.735,  12 

R.  V.  Bloom  field,  1  C.  &  M.  537,      240,  245 
R.  V.  Boardman,  2  M.  &  Rob.  147,  135 

R.  V.  Booth,  R.  &  R.  47,  5,^5-29-32 

352 

33 

406,  459 

535 

458 

43 

332 

444-45 


R.  V.  Bootyman,  3  C.  &  P.  300, 

R.  V.  Borthwick,  I  Doiigl.  207, 

R.  V.  Bolficld,  1  C.  &.  M.  151, 

R.  V.  Brain,  3  B  &  Ad.  614, 

R.  V.  Bridekirk,  11  East  304, 

R.  V.  Briggs,  1  Mood.  (;.  C.  318, 

R.  V.  Brisac,  4  East  164, 

R.  V.  RrothertoM,  Stra,  702, 

R.  V.  IJrough,  1  Wils.  244,       '  8 

R.  V.  Brown,  1  C.  &  M.  175,  497 

R.  V.  Brows,  4  C.  &  P.  131,  191 

R.  V.  Buckingliam,  (Marquis)v4  Campb. 

189,  ^            404 
R.  V.  Biirdctt,  4  B.  &  Al.  95,     545,  547,  559 

R.  V,  Busli,  R.  &  R.  372,  201 

R.  V,  Butler,  6  C.  &  P.  368,  115 

R.  V.  Buttcrfield,  2  M.  cSt  Rob.  522,  39 

R.  V.  Butterworth,  1  Mood.  C.  O.  257,          6 

R.  V.  Button,  8  C.  &,  P.  660,  119,212 

R.  V.  Callanan,  6  B.  &  C.  102,  270 

R.  V.  Camfield,  6-  Esp.  136,  459 

R.  V.  Canniir,  9  C.  &  P.  359,  1 15 

R.  V.  Carii.slc,  6  C.  &  P.  636,  406,  447 
R.  V.  Caspar,  2  Mood.  C.  C.  101 ;  9  C. 

&  P.  289,  34,  201 

R.  V.  Chalkley,  R.  &.  R.  258,  147 

R.  V.  Chapman,  Fort.  R.  354,  7 

R.  V.  Chappie,  9  C.  &  P.  355,,  32 

R.  V.  Checkets,  6  M.  &  S.  38,  7 

R.  V.  Clark,  R.  &- R.  358,  6,10 

R.  V.  Clayton,  1  C.  &  K.  128,  32 

R.  V.  Clcndon,  2  Strange  870,  14 

R.  V.  Collier,  5  C.  &  P.  160,  13 

R.  V.  Collins,  9  C.  &  P.  456,  561 

R.  V.  Cook,  R.  &  R.  C.  C.  176,  11 

R.  V.      "     2B.  &C.  618,  375 

R.  V.  Copcland,  1  C.  &,  M.  516,  254 

R.  V.  Cornwell,  R.  &  R.  336,  100 

R.  V.  Cotton,  Cr.  El.  738,  10 

R.  V.  Cox,4(;.  &,  P.  .538,  489 

■R.  V.  Coxhead,  1  C.  &,  K.  623,  99,  lOO-l 

R.  V.  Oans,  8C.  &  P.  76.5,  10 

R.  V.  Crishain,  C.  &  M.  187,  33, 102 

R.V.' Crisp,  1  B.  &  A  1.282,  514 

R.  V.  Cross,  3  Campb.  227,  402,  422 

R.  V.  CroHsley,  10  A.  &,  E.  1.12,  1 1 

R.  V.  Crnmpton,  1  (J.  &  M.  597,  79 

R.  V.  Crunden,  2  C.!tn;.l>.  89,  451-.52-53 

R,  V.  Cuddy,  C.  &.  K.  210,  33 


13, 


43 

480 

352 

70 

73 

33 

421,  461 

147 


V.  Culkin,  5  C.  &  P.  121, 
V.  Cundick,  1  D.  &,  R.  N.  P.  C. 
V.  Curwood,  5  N.  &,  M,  369, 
V.  Dale,  9  Moore  19, 
V.  Dale,  1  Mood.  665, 
V.  Dannellv,  2  Marsh.  571, 
V.  Davey,  5  Esp.  7,217, 
V.  Davis,  Leach  493, 
V.  Dawson,  2  Stark.  N.  P.  62,  11 

V.       "         1  Str.  19,  129 

V.  Deacon,  R.  &  M.  N.  P.  C.  27,  12 

V.  Dcakins,  1  Sid.  142,  135 

V.  De  Berringer,  3  M.  &  S.  75,  335, 

341-42,344 
V.  Deeley,  1  Mood.  C.  C.  R.  30.3,  11 

V.  Dclaval  and  others,  3  Burr.  R. 
1434^  331 

V.  Dent,  1  C.  &  K.  249,  241,  247 

V.  Derbyshire,  (Inhab.)  2  Q.  B.  745,  404 
V.  Devett,  8  C.  &  P.  639,  45 

V.  Dixon,  2  Campb.  12,  225 

V.  Douglass,  1  Mood  C.  C.  462,    99,  100, 
239,  257 
V.       "  Dickin.soji'.s  Q.  S.  337-,    253 

V.       "  1  Campb.  212,  267 

V.  Drake,  Salk.  660,  130-31 

V.  Duffin,  R.  &  R.  365,  190 

V.  Dunn,  1  C.  &  K.  730,  317 

V.  Dunnett,  East  P.  C.  985,  134 

V.  Dunston,  R.  &  M.  109,  280 

V.  Dyson,  R.  &  R.  52S,  38,  66 

V.  Eccles,  3  Dougl.  337,  333,  398 

V.  Edwards,  6  C.&,  P.  401,  43 

V.        "        8G.  &P.  611,  55,530 

V.         "         Trcrn.  P.  C.  10.3,  225 

V.         "         cited  in  Schofield's  case, 
Cald.  400,  327 

V.  Eggington,  2  B;  &  P.  508,  13 

V.  Els  worth.  East  P.  C.  980,        130,  150 
V.  Evans,  5  C.  &  P.  553,  624 

V.  Fawcett,  2  East  P.  C.  826,  862,       221 
V.  Fearnley,  1  Leach  425;  1  T.  "R. 
316,  4,  .525 

.  v.- Ferguson,  2  Stark.  N.  P.  C.  489,     387 
,  V.  Finucane  and  another,  5  C.  &  P. 


551, 

.  V.  Fislier,  eta!.,8C.  &  P.  612, 
V.  Flint,  R.  &  R.  460, 
V.  Folkes,  1  Mood.  C.  C.  341, 

.  V.  Forsgatc,  1  Leach  463, 
V.  Forsyth,  R.  &.  R.  274, 

.  V.  Foster,  R.  &.  R.  412, 
V.       "       Ld.  Raym.  475, 
V.  Fowio,  4  C  &  P.  4!t2, 

.  V.  Fowler,  1  Edst  P.  C.  461,- 
V.       "  2   East's   P.  C'.  c. 

II, 

V.  Eraser,  1  Mood.  C.  C.  419, 
V.  Freeth,  R.  ik,  R.  127, 
V.  Friend,  R.  &  R.  20, 
V.  Fuller,  1  B.  &,  P.  180, 
V.  Fursey,  6  C.  &.  P.  81, 
V.  Callara,  1  Sess.  Ca.  231, 
.  V.  <iamlingay,  3  T.  R.  513, 
V.  (iardei.cr,  »  C.  &.  P.  737, 
V.  George,  Sir.  9  C.  &.  P. '493, 


13 

4.59 

240 

102 

192 

192 

10 

524 

341,315 

340,  342 


379 
509 
239 
55,  529,  530 
146 
4S9 
4.52 
459 
320 
114 


TABLE  OF  CASES. 


Xlll 


R.  V. 
R.  V. 
R.  V. 

R.  V. 

R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.v. 
R.  V. 
R.v. 
R.  V. 
R.v. 
R.v. 
R.  V. 
R.v. 
R.v. 
R.v. 
R.v. 
R.  v. 
R.  V. 
R.  V. 
R.v. 
R.V. 
41 
R.v. 
R.  V. 
R.v. 
R.  V. 
R.  V. 
R.V. 
R.V. 
R.  V. 
R.V. 
R.  V. 
R.v. 

Q. 
R.v. 
R.v. 
R.v. 
R.v. 
R.v. 
R.v. 
R.v. 
R.  V. 
R.  v. 
R.V. 
R.  V. 
R.V. 
R.V. 
R.v. 
R.V. 
R.v. 
R.v. 

D. 
R.v. 
R.v. 
R.v. 
R.v 


Gibbs,  1  East  R.  173,  224 

Gibbs,  R.  &,  R.  366,  478 

Gilchrist,  Leacli  75.3,  133-34 

Gill,  2  li.  &,  Ai.  2U4,   330,  334-35-36, 
341,  343 
Gill,  R.  &.  R.  431,  y 

Goddard,  ct  al.,  Ld.  Raym.  920,      132 
3  Salk.  171,  132 

Gogeriy,  R.  &,  R.  343,  33 

Gonifcrtz,  11  Jur.204,  335,345,349,371 
Goodhall,  R.  &  R.  461,  23y,  257 

Gore,  8  D.  P.  C.  102,  422 

Goliey,  R.  Sc  R.  84,  514-15 

Gough,l  M,  A-Rob.  71,  13 

Grainger,  3  Burr.  1607,  ■    8 

Gray,  7  C.  &.  P.  164,  34,  102 

Gieepc,  5  Mod.  343,  302 

Giegorv,  5  B.  &.  Ad.  555,  405 

Grevil.'l  Andr.  195,  34 

Grey  (Ld.),  3  St.  Tr.  519,  331 

Grounsel,  7  C.  &,  P.  788,  43 

Gulston,2  Ld.  Raym.  1210,  489 

Hake,  4  Man.  &,  Ky.  483,  n.  218 

Hamilton,  7  C.  &  P.  448,         336,  351 
Hamlyn,  4  Campb.  379,  525 

Hammersmith,  1  Stark.  357,  460 

Hanson,  1  C.  &,  M.  334,  137 

Harland  and  others,  1  P.&,  D.  93,  218 
Harper,  5  Mod.  96,  535 

Harrington,  R.  &,  R.  207,  11 

Harris,  Balls  &  Moses'  7  C.  &  P. 


6,  6,  131-2 

Harris,  10  A.  &  E.  132,  11 

Harris,  4  T.  R.  202,  407 

Harrison,  2  East  P.  C.  980,  130 

Hart,  1  Leach  172,  130-1 

,  Harvey,  2  B.  &C.261,  136 

Hatfield,  Ca.  t.  Hard.  315,  460 

4  B.  &,  AI.  75,  458 

Haworth,  4  C.  &  P.  254,  132,  546 

Hayes,  2  M.  &,  Rob.  155,  6 

Hayne,  4  M.  &  S.  220,  225 
Heage,  (Inhab.),  5  Esp.  217 ;  2 

B.  R.  121,  427,  458 

Heine,  cited  Stra.  195,  218 

Hempstead,  R.  &  R.  344,  6 

Henderson,  1  C.  &.  M.  330,  242,  257 

Hieks,  M.  &,  Rob  302,  10 

Higgins,  2  East  R.  .5,       333,  489,  604 

Higginson,  2  Burr.  R.  1233,  434 

Higley,  4  C.  &.  P.  366,  100 

Hill,  li.&R.  190,  241-^12 

Hinion,  3  Mod.  122,  309 

Hodgson,  3  C.  &  P.  422,  352 

Hodson,  6  Mod.  210,  6 

Hogg,  2  M.  &-  Rob.  380,  10 

Holden,  R.  &,  R.  1.54,  136 

"       2  Taunt.  334,  147 

Holland,  2  M.  &,  Rob.  351,  45 

"      5  T.  R.  616,  9,  130 
Hollingbcrry,  4  B.  &  C.  329  ;  6 

&  R.  34.i,  396,  459 

Hollis,  2  C.  &.  P.  536,  405 

Houseman,  8  C.  &  P.  180,  135 

Howard,  1  M.  &  R.  187,  275 

.  Howell,  3  Keb.  510,  439 


R.  V.  Huggins,  3  C.  &  P.  414,  667 

R.  V.  Hughes,  4  C.  <fc  P.  373,  461,  489 

R.  V.      "        5  C.  &,  P.  126,  44 

R.  V.      "        C.  &  M.  593,  192 

R.V.       «         IC.  &,K.519,  313 

R.  V.  Hunt,  2  Campb.  583,  11 

R.  V.      "      4  C.  &,  P.  128,  132,  546 
R.  V.  Hunter,  R.  &,  R.  510 ;  4  C.  &  P. 


254, 
R.  V.  Hunter,  2  Leach  624, 
R.  V.  Hutchinson,  R.  &.  R.  412, 
R.  V.  Huxly,  1  C.  &.  M.  596, 
R.  V.  Incledon,  13  East  164, 
R.  V.  Jackson,  3  Campb.  370, 
R.  V.  Jackson,  Dickinson's  Q.  S.  332, 
R.  V,  Jervis,  6"C.  &  P.  1.56, 
R;  V.  Johnson,  3  M.  &.  S.  539, 
R.v.  Jones,  2  B.  &  Ad.  611, 


132-33 

134-35 

192 

127 

403 

257 

2.50 

201 

13,  14,  190 

459 

225 

533,  535 

11 


R.  V.      "      2  Ld.  Raym.  1013, 
R.  V.      "      2  Stra.  1145, 
R.v.      "      Stra.  1146, 
R.  V.      "      2  Campb.  131,  14 

R.  V.      "      2  East  P.  C.  991,  2.35 

R.V.      "      1  Leach  C.C.  174,  266 

R.  V.      "      2  East  P.  C.  822,  2j5 

R.  V.  Juens,  7  C.  &  P.  213,  526 

R.  V.  Kelly,  1  Mood.  C.  C.  113,  44 

R.  V.  Kennedy,  1  Stra.  1^3,  332 

R.  V.  Kennett,  5  C.  &  P.  282,  517 

R.  V.  Kenrick,  5  A.  &   E.  N.  S.  49, 

264,  341,  335,  310,  344 
R.V.  King,  13  L.  J.  119 ;  7   A.  &,  E. 

807,  ,      33U,  334,  339,  342-3 

R.  V.  Kingsmoor,  2  B.  &  C.  190,  460 

R.  V.  Kingston,  8  East  R.  4,  6,  525 

R.  V.  Kingston,  6  M.  &  S.  365,  462 

R.  V.         "  6  East  R.  52,  525 

R.  V.  Kinnersly,  I  Stra.  193,        6,  332,  .394, 


R.  V.  Knight,  7  B.  &  C.  413, 

R.  V.  Leake  (Inhub.),  5  B.  &.  Ad.  469, 

R.  V.  Leddington,  9  C.  Al  P.  79, 

R.  V.  Leeser,  Cro.  Jac.  497, 

R.  V.  Limehousc,  2  Shower  455, 

R.  V.  Lincoln,  8  A.  &  E.  65, 

R.V.  Lloyd,  East  P.C.  976, 

R.  V.  Loome,  1  Mood.  C.  C.  160, 

R.  V.  Lovel,  2  M.  &.  R.  39, 

R.  V.  Lowe,  2  Stra.  820, 

R.  V.  Ludbury,  12  Mod.  962, 

R.  V.  Lynn,  2  T.  R.  723, 

R.  V.  Lyon,  5  D.  &.  R.  497, 

R.  V.      "      at  al.,  1  C.  &  P.  527, 

R.  V.  MacArthur,  Pcake's  C.  C.  &  P., 

R.  V.  M'CulIy,  2  Mood.  C.  C.  34, 

R.  V.  M'Dermolt,  R.  &.  R.  356, 

R.v.  M'Intosh,  Ea.st  P.  C.  956, 

R.  V.  M'Kernon,  2  Russ.  541, 

R.  V.  Mackally,  9  Co.  67, 

R.  V.  Marriot,  8  C.  &  P.  425, 

R.  V.  Marsh,  C.  &  K.  4't6, 

R.  V.  Martin,  8  A.  &.  E.481, 

R.  V.       "        1  Mood.  C.  C.  483, 

R.  V.        "        9  C.  &  P.  21.3, 

R.  V.  Mason,  2  East  180, 

R.  V.  Mathews,  2  Leach  661, 


61)4 
459 
403 

38 
225 
404 
458 
U\ 
390 
114 
533 
332 
379 
403 
460 
525 
190 
190 
135 
279 

43 

55 
114 
243 
135 

13 

130 

8 


B' 


/^ 


XIV 


TABLE  OF  CASES. 


R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 

R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 

R 
R 
R, 
R, 
R, 
R, 
R 
R 
R 
R 

R 
R 

R 
R 
R 
R 
R 

R 
R 
R 
R 
R 
I? 
R 


V.  Mathews,  5  T.  R.  162,  4  ib.  202,    120 
V.  Maw  bey,  6  T.  R.  619,  3U9 

V.  .May,  Dougl.  193,  131 

V.  Meredith,  R.  &  R.  46,  525,  532 

V.  Messingham,  1  Mood.  C.C.  257,         6 
V.  Micliael,  9  C.  &  P.  356,  62 

V.  Moffat,  Leach  483,  135 

V.  Moore,  3  B.  &  Ad.  184,  423 

V.  .Mooreliouse,  Cald.  554,  525 

V.  Morris,  1  B.  &  Ad.  441,  403,  405, 418, 

422 

V.  Mosley,  1  Mood.  C.  C.  97,  45,  69 

V.  Murphy,  10  St.  Tr.  183,  135 

Murray,  MS.,  331 

Neil,  2  C.&  P.  485,  421 

.  V.  Neville,  Peake's  C.  N.  P.  91,  422 

.  V.  Newlands,  4  Jur.  322,  218 

.  V.  Newton,  1  C.  &  K.  469,  308 

.  V.  Nicholl,  R.  &  R<.  130,  115 

.  V,        "        1  B.  &  Ad.  21,  279 

.  V.  Nicholls,  2  Stra.  1227,  332 

.  V.  Northamptonshire,  2  M.  &  S.  262, 

404,  459 

.  V.Norton,  8  C.  &  P.  196,       6,243,253 

.  V.       "       R.  &  R.  509,  11 

.  V.  Oakley,  4  B.  &  Ad.  307,  218 

V.  Gates,  5  St.  Tr.  4,  302 

V.  ()' Brian,  1  Den.  C.  C.  9,  45 

V.  O'Connell,  1 1  CI.  <fe  Fin.  15,    332,  342 

V.  Orchard,  8  C.  &  P.  565,  7 

V.  Overton,  2  xMood.  C.  C.  263,  280 

V.  Owen,  1  Mood.  C.  C.  96,  33 


.  V.  Oxfordshire,  (Inhab.),  1  B.  &  Ad. 
289,  404 

.  V.  Packard,  1  C.  &  M.  133,  ^3 

.  V.  Paddington,  (Vestry),  9  B.  &  C. 
45G,  403 

.  V.  Pappineau,  Stra.  686,  403 

.  V.  Parker,  3  A.  &  E,  292,  243 

V.       "       7  C;.  &  P.  825,  250 

V.       "        3  Q.  B.  2i)2,  253 

.  V.        "        11  Law  Ins.  102,  M.  C, 
2  Mood.  C.  C.  1,  240,  331,  334,  336 

.  V.  Parkes,  2  Leach  616,  239 

.  V.  Parry,et  al.,  7  (\  &,  P.  e36,  34 

V.  Patrick,  2  East  P.  C.  1059,  192 

V.  Paul,  1  Leach  77,  130 

V.  I'eace,  3  B.  &  Aid.  519,  10 

V.  Pearson,  8  V.  &  P.  321,  320 

.  V.  Peck,  9  A.  &.  E.  666,    330,  334, 

341-42,  346 


V.  Pedley,  1  A.  &  E.  22,  429 

V.  Penderyn,  2T.  R.  5];<,  461 

V.  Perkin.s,  4  C.  &.  P.  5.37,  115 

V.  Perot,  2  M.  &.  S.  379,  241-42 

V.  Perry,  1  C.  &  K.  725,  191 

V.  Phillips,  6  East  H.  464,  328,  604 

V.         "         ct  al.,  2  Stran.  921,  6 

V.        "         3  Canipb,  7.3,  113 

V.  I'hilpotts,  1  C.  &,  K.n2,    242,249-50 
V.  Piersoti,  2  J,d.  Kayni.  1197,  4:.^2 

V.  Pini,  R.  &,  R.  3-.'.'-),  12 

V.  I'iti,  3  Burr.  13:)5,  5H9 

V.  Pluriimcr,  1  ('.  &,  K.  61)0,  H4 

V.  Plyiiiplon,  2  Lrl.  Knyin.  I .'{77,         005 
V.  Polly  and  another,  C.  &.  K.  77,  12 


V.  Powell,  3  Q.  B.  180,  452 

Leach  90,  110,  130-1 

V.  Powles,  4  C.  &  P.  571,  607 

V.  Poynder,  1  B.  &  C.  178,  534 

V.  Prestow,  1  Campb.  494,  241 
V.  Puckering,  1  Mood.  C.  C.  242,         190 

V.  Pudditbot,  2  East  P.  C.  247,  190,  247 

V.  Pulhani,  9  C.  &  P.  280,  6 

V.  Pywell,  1  Stark.  N.  P.  C.  402,  345,  379 


V.  Randall,  C.  &  M.  496,  418 

.  V.  Rawlins,  2  East  P.  C.  617,  IHO 

V.  Reading,  Leach  672,  134 

V.  Reeves,  Leach  933,  134 

V.  Resinski,  1  Mood.  C.  C.  19,  Ho 

V.  Richards,  1  D.  &  R.  665,  2»0 
.  V.  Richardson,  1  M.  &  Rob.  402,  334,  341, 

345 

V.  Ridley,  2  Campb.  650,  653,  115 

V.  Roberts,  Cartli.  226,  524 

V.  Robinson,  2  Burr.  799,^  525 

.  V.  Robinson,  Holt.  C.  N.  1'.  595,  192 

V.  Rogier,  1  B.  &  C.  375,  2  D.  &  Jt. 

431,                                     •  436 

v.Ruddick,  8C.  &  P.  237,  1^2 

V.  Rushton,  Dickinson's  Q.  S.  380,      587 

V.  Rush  worth,  R.  i&  K.  317,  240 

V.  Russel,  et  al.,  9  D.  &  R.  566,  41 S 

V.          »            9D.  &R.56I,  41.3 

V.           "8  East  R.  427,  4li3 

V.  Russel,  1  M.  C.  C.  356,  3H 

V.  Ryan,  2  M.  &  R.  213,  607 

V.  Sainsbury,  4T.  R.  451,            .  U 

V.  Sandys,  1  C.  &  M.  345,  53 

V.  SanthiU,  Ld,  Raym.  1  174,  40:$ 

V.  Saunders,  7  C.  &  P.  276,  5:il 

V.  Sawyer,  R.  &  R.  294,  47 

V.  Scofield,  Cald.  397,  435 

V.  Scott,  R.&  R.  414,  9 

V.      "      3  Burr.  R.  1262,  4b7 

V.  Searing,  R.  &  R.  350,  I'-'l 

V.  Sedley,  10  St.  Tr.  Ap.  5 

V.  Seinple,  1  Lcacli  420,  93,  452 

V.  Senior,  1  Mood.  C.  ('.  MG,  1 ''!• 

V.  Sermon,  1  Burr.  R.  516,  403 

V.  Seward,   1  A.  &  E.  70.5,  3  N.  & 

M.  557,         230-3 1-:.2,  330,  332,  342-43 

R.  V.  Sheen,  2  C.  &  P.  634,  11,  658 

R.  V.  Shellard,  9  C.  &.  1'.  277,  649 

R.  V.  Sheppard,  Leach  265,  135 

R.  V.          "         R.  &,R.  169,  136 

R.  V.  Sherington,  1  Leach  513,  192 

R.  V.  Silversides,  3  Q.  B.  R.  405,  9 

R.  V.  Skerrett,  1  Sid.  312,  379 

R.  V.  Snath,  3  (J.  &L  P.  412,  661 

R.  V.       "      2  Stra.  704,  423 

R.  V.       "'4  Esp.  Ill,  422 

R.  V.       «      1  Mood.  C.  C.  295,     -  10 

R.  V.  Spencer,  3  C.  &,  P.  420,  240 

R.  V.  Spragge,  2  Burr.  993,      331,  335,  34.3, 

^^                         '     ^      '  .       3,)4 

R  V.  Stanley,  R.  &,  R.  C.  C.  432,  4!I9 

R.  V.  Slarkey,  7  A.  ^  E.  95,  405 

l{.  V.  Stead,  8  Esp.  142,  4(il 

R.  V.  Stevens,  5  B.  &  C;.  246,  2m» 

R.  V.  Stevenson,  C;.  &  If.  .">5,  45LI-6;» 

R.  V.  Stewart,  R.  &,  R.  363,  33 


TABLE  OF  CASES. 


XV 


R.  V. 

R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.V. 
R.V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.v. 
R.  V. 
R.v. 
R.  V. 

R.v, 
R.v. 
R.  V. 
R.v. 
R.v. 
R.v. 
R.v. 
R.v. 
R.  V. 
R.v. 
R.v. 
R.v. 
R.v. 
R.v. 
R.v. 
R.  V. 
R.v. 
R.  V. 
R.  V. 
R;v. 
R.v. 
R.  v. 
R.v. 
R.v. 
R.  V. 
R.v. 

R.v. 
R.v, 
R.v, 
R.  V. 
R.v, 
R.  V. 

R.  V. 
R.V, 
R.  V. 
R.  V. 
R.  V 
R.v. 
R.  V. 
R.  V. 


Stone,  4  C.  &  P.  .379,  514 

Story,  H.  &,  R.  81,  HlMl 

Straford,  3  Ld.  Raym.  40,  404 

Stroud,  C.  &  K.  187,  10 

"      6  C.  &.  P.  535,  190 

Sudbury,  12  Mod.  262,  G 

Sudbury,  et  al.,  Ld.  Raym.  484,      487 
Sutton,  4  Burr.  2116,  438 

Szudur.skie,  1  xMood.  C.  C.  419,        132 
Tanner,- 1  Esp.  R.  306,  307,  342 

Taylor,  Leach  255,  192,  133 

»       &  Shaw,  Leach  398,  76 

"       3B.  &C.  502,  8,11,436 

Testick,  1  East  181,  133 

Thomas,  3  D.  &  R.  621,  654 

Thompson,  1  Mood.  C.  C.  139,  43 

2  East  P.  C.  515,  13 

"  2  Leach  810,  135 

Tillcy,  2  Leach  671,    ■  49:» 

Tindall,  et  a!.,  6  A.  &  E.  143,  403,  420 

"       1  N.  &.  P.  719,  418 

Todd,  2  Eist  P.  C.  658,  692 

Tratford  et  al.,  1  B.  &.  Ad.  874, 

6,  403-4 
Treharme,  1  Mood,  C.  C.  298,  9 

Trcve,2  East  P.  C.  821,  224 

Trucman,  8  C.  &  P.  727,  13 

Turner,  2  M.  &,  Rob.  214,  5 

1  Leach  536,  192 

et  al.,  13  East  228,     331,345 
13  East  230,  333 

Tutchin,  5  St.  Tr.  532,  547-48 

Tye,'R.  &.  R.  345,  43 

Upton,  6  C.  &  P.  133,  4.59 

Vantaiidiilo,  4  M.  &  S.  73,       432,  428 
Vauj,^han,  8  C.  &,  P.  290,  135 

4  Burr.  2500,  594,  604 

Vincent,  9  C.  &  P.  91,  488,  64^ 

VVaddington,  1  East  143,  587 

2  East  P.  C.  513,  9 

Wakclinff,  R.  «fe  R.  504,  240 

Walker,  6  C.  &  P.  657,  241 

Walker,  I  Mood.  C.  C.  155,  191 

Walker,  3  Campb.  264,  192 

Wallace,  I.e.  &  M,  113,  276 

Walters,  1  C.  &  M.  588,  80 

Ward,  4  A.  &.  E.  384, 
Warren,  I'Russ.  686, 
Warren,  R.  &  R.  48,  n, 
Warshaner,  1   Mood,  C,  C 


7  C.  &  P.  429, 
Waters,  1  Mood.  C.  C.  457, 

"       7  C.  &  P.  250, 
Watson,  2  T.  R.  199, 
Watts,  2  Esp.  675, 


403,418,422 

101 

532 

466, 

131-32 

1.32 

'       10 

44 

550 

403,  418 


1   Salk.  357;  Ld.  Raym. 

856,  405 

"      M.  &  .M.  281,  422 

WcHl)  and  others,  14  East  406,       587 
Wci^^cnbr,  1  Stark.  C.  543,  548 

WcstlK-cr,  Stra.  1133,  -    191 

Wcsimark,  2  M.  &-  Rob.  305,  45T 

WiKMlK'y,  2  Riirr.  1125,  22."> 

When  tie  V,  1  Bla.  R.  273,  224,  225 

Wiiile,  Cald.  183,  525 


R.  V.  White,  1  Burr.  33^,  403,  421 

R.  V,        "      1  Campb.  359,  556 

R.  V.  Whitney  (Inhab.),  3  A.  &  E.  71,  404 

R.  V.  Wickham,  10  A.  &  E.  38,  2 12 

R.  V.  Williams,  2  Campb.  646,  1 1 

R.V.          »         Dickinson's  Q.  S.  378,  219 

R,  V.  Williams,  1  Salk,  383,  422 

R.  V.  Wilson,  2  Mood,  C,  C.  52,  273 

R.  V.        »       3  A,  &  E.  817,  218 

R.  V.        "       8  T.  R.  357,  2 1 8 

R.  V.  Wood,  1  Sess.  Ca.  217,  2J5 

R.  V.  Woodward,  8  C.  &  P.  561,  7 

R.  V.  Worrell,  1  Mood.  C.  C.  224,  24U 

R.  V.  Wright,  3  B.  &,  Ad.  681,  405 

R.  V,  Yarnell,  4T,  R,  .521,  8 

R,  V,  Yates,  C,  &.  M.  1.32,  28.) 

R.  V.       "      1  Mood.  C.  C,  170,  24f) 

R.  V.  Yorkshire,  7  T.  R.  467,  403 

R.  V.          "          7  East  588,  458 

R.  V.  Young,  et  al.,  1  Leach  505,  6 
R.  V.        "      3  T.  R.  98,    136,  224-25,  239, 

480,  605 


Salisbury  v.  State,  6  Conn.  101,  197 

Sanchar's  case,  9  Rep.  119,  71 

.Sanderlin  v.  State,  2  Humph.  31,5,  477 

Sander-son  v.  Baker,  2  W.  Bl.  832,  668 

Serlested's  case.  Latch  202,  225 

.Serpentine  v.  State,   1   How.  Miss.  R, 

260,  9 

ShntFer  V,  Kintzner,   1    Binn.  R.  515, 

542,  546 

Sharpless  v.  Com.,  2  S.  &  R.  91,  573 

■Shausc  V.  Com.,  5  Barr  83,  489 

Shclton  V.  State,  1  Slew.  &  Port.  208,         8 

Shely  v.-  Biggs,  2  Har.  &,  J.  363,  547 

Sherban  v.  Com.,  8  Watts  213,  598 

Simmons  v.  Com.,  I  Rawle  142,  9 

"      V.      "     5  Binn.  618,  202 

Singleton  v.  Johnson,  9  M.  &,  W.  67,  1 1 

Smith  V.  Dutfield,  5  S.  &  R.  38,  109 

Southworth  v.  State,  9  Conn.  560,        12,  20 

Spangkr  v.  Com.,  3  Binn.  533,  197 

.Squires  v.  Wliisken,  3  Campb.  148,    434-.39 

St mhope  v.  Baldwin,  1  Addanis'  Rep.  93,    5 

State  v.  Allison,  3  Yerg.  428,  -6,  332 

"     V.  Ammons,  2  -Murph.  123,       279-80 

"  -v.  Anthony,  1  M'C'ord  2{-5,  25 

"     V.  Avery,  7  Conn.  267,         422,  604-5 

"     V.  Bacon,  7  Verm.  219,  243 

"     V.  Bailcv,  8  Port.  472,  106 

"     V.  Bildwin,  1  Dev.  &,  Bat.  195,       402 

"     V.  Ballard,  2  .Murph.  l36,  1.33 

"     V.  B,iiden,  1  Dev.  318,  32 

»     V.  Barnes,  5  Yerg.  187,  30 

"     y.  Bariletf,  11  Verm,  650,  202 

"     V.  Beck,  1  Hills.  C.  R.  36.3,  115 

"     V.  Beckwith,  1  Stew.  318,  8,9 

"     V.  Bell,  3  Iredell  506,  421 

"     V.  Bishop,  15  Maine  122,  6,  7 

"     V.         "         1  Chip,  no,  2.^2 

"     V.  Boise,  1  M'MuUen  190,  13,  ,3.33 

"     V.  Bradley,  1  Hay.  403,  130,  545 


XVI 


TABLE  OF  CASES. 


Sute  V.  Brazil,  et  al,  Rice  R.  257,     288-89 

"  V.  Brickcll,  I  Hawk?  354,  2 

"  V.  Brown,  1  Hay.  100,  202 

"  V.  Bryant,  2  Car.  Law  Repos.  269,   191 

"  V.  Buchanan,  2  Har.  &,  J.  317,       337, 
342-43,  356,  37y 

•'  V.  Buckman,  8  N.  Hamp.  203,  12 

"  V.  Cagle,  2  Humph.  414,  423,  456 

"  V.  Caldwell,  2  Tyler  212,  604 

"  V.Calvin,  &c.,Charlt.  151,      131-2-6 

«  V.  Carland,  3  Dev.  114,  280 

"  V.  Carr,  5  N.  Hamp.  367,     130-2,  545 
"     V.  Carter,Conf.(N.C.)R.210,  130,545 

"  V.  Cassel,  2  H.  &,  G.  470,  12,  24 

"  V.  Cawood,  2  Stew.  3G0,  ■         343,  400 

"  V.  Chandler  and  Keyes,  15  Verm. 

42.5,  467 

"  V.  Chase,  1  Walker  384,  547 

"  V.  Cherry,  3  Murph.  7,  7,  44,  75 

"  V,  Coffey,  N.  < '.  T.  R.  272,  130,280, 54.5 

"  v'.  Cole,  2  iM'Cord,  117,  4K8 

"  V.  Coleman,  5  Port.  52,     13,  26,  48, 333 

"  V.  Cooper,  1  Greenl.  362,  54,  661 

"  ,  V.  Cottle,  15  Maine  473,  466 

"  V.  Council,  Tenn.  305,  '     212 

«  V.  Cowell,  4  Iredell  231,  5M5 

»  V.  Cruidly,  3  Harr.  108,  23 

»  v».  Crans,  7X;ill  &  J.  290,  12 

»  V.  Crow,  1  Iredell  75,  114 

"  V.  Cruiser,  3  Harris.  108,  12 

«  V.  Cunningham,  2  Spears  248,         602 

»  V.  Dandy,  1  Brev.  3U5,  9 

«'  V.  Davis,  2  Iredell  1.53,  1,  2,  214  ' 

"  V.       "      1  Iredell  125,  114 

"  V.  Dent,  3  Gil!  &,  Johns.  8,      333,  604  ' 

"  V.  Dcwitt,  2  Hill  S.  C.  R.  282,        337  ' 

"  V,  Dodd,  2  Murph.  226,  '     279  i 

»  V.  Doons,  Charit.  1,  438  1 

«  V.  Doull,  3  GUI  &  Johns.  310,         190  I 

"  V.  Douner,  8  Verm.  424,  304  | 

"  V.  Dnnkley,  3  Iredell  117,  74 

"  V.  Duzan,"6  Black f.  31,  496  ' 

•'  V.  Ellar,  1  Dev.  267-68,  411 

«'  V.  Elli.s,  3  Conn.  185,  202 

"  V.  Evans,  5  Iredell  603,  24  , 

«  V.  P'arnier,  4  Iredell  224,  101   I 

»  V.  Farrand,  3  Halst.  333,  130,  545  l 

"  V.  Farr^r,  1  Hawks  487,  604  ; 

"  V.  Fley  and  Rochelle,  2  Brev.  338,    45  ' 

"  V.  Foilet,  6  N.  Hamp.  53,  481  I 

«'  V.  France,  1  Overtones  R.  434,  10 

"  v.Pranklin,  3  Johns.  Cases,  299,    133 

"  V.  Freeman,  1  S[)oars  57,  45 

»  V.         "         15  Verm.  723,         27^-79 

.«  v.Gaffiiey,  Rice  431,  13,333 

"  V.  Gallitnore,  2  Iredell  374,  279 

"  V.  Gardiner,  1  Iredell  27,         134,149 

»  V.         "         Wri^rhi's  R.  392,  11 

"  V.  (ieikin,  1  Iredell  121,  106 

"  V.  Gilh.rt,'13  Verm.  647,  29 

»  V.  Goode,  1   Hawks  463,  32-3 

"  V.  Gratjt,  22   Maine  171,  7,192 

"  V.  Great  Works,  20  Maine  41,  5 

"  V.  Greenlee,  |  Dev.  523,  •    ]35 

»  V,  (iriiliin,  18  Verm.  198,  176 

"  V.  Grisham,  2  Yerg.  589,  423,  454-55 


State  V.  Groff,  1  Murph.  270,  32-3 

"     V.  G.  S.,  1  Tyler  295,  9,  1   0 

"  v.Gustin,2South.R.749,  130,143,545 
"  v.  Haddock,  2  Hawks  462,  1,  179,  24 
»     v.  Handy,  20  Maine  SI,  131 

"     v.  Haney,  2  Dev.  &  Bat.  390,        200, 

14,52 
"     V.  Hanna,  1  Ilay.  4,  32 

"  V.  Hardwick,  2  Mo.  185,  27d 

"     V.  Harris,  2  Halst.  457,  4 

"  V.  Hascall,  6  N.  Hamp.  358,    241,  282 

"  V.  Hattaway,  2  N.  &,  M'C.  118,      279 

"  V.  Haywaid,  1  N.  &.  M'C.  547,       279 

"  V.  Henderson,  1  Richardson  179, 

545, 547 

"  V.  Hendricks,  Conf.  N.  C.  R.  369,  ^     9 

"  V.  Hitehens,  2  Harringt.  527,  130 

"  V.  Hite,  9  Yerg.  358, 

"  V.  Hodgdon,  3  Verm.  4^1, 

"  V.  Holbrook,  13  Johns.  90, 

"  v.  Holford,  2  Blackf.  103, 

"  V.  Hooker,  17  Verm.  231, 

"  V.         "17  Verm.  659, 

"  v.  Houseall,  1  Rice's  Dig.  346, 

"  V.  Hughes,  2  Har.  &  M'H.  499, 

"  v.  Huntley,  3  Iredell  418, 

"  V.  Jernigan,  3  Muiph.  19, 

"  v.  Jesse,  negro,  7  Gill  &  J.  290, 

"  V.Jim,  1  Dev.  142, 

"  V.     "     3  Murph.  3, 

"  V.  Johnson,  1  Walk.  392, 

"  V.         "         ]  Dev.  360, 

"  V.  Joiner,  4  Hawks  350, 

"  V.  Jones,  4  Halst.  457, 

"  V.      "      1  M'M.  236, 

"  V.  Justice,  2  Dev.  199, 

"  V.  Kean,  10  N.  Hamp.  347, 

"  V.  Keys,  8  Verm.  57, 

"  v.  Lamon,  3  Hawks  175, 

'"  V.  Lane,  4  Iredell  113, 

"  v.  Langford,  3  Hawks  381,     489,  496' 

"  v.  Lathrop,  15  Verm.  R.  279,  243 

"  V.  Lazarus,  1  Const.  S.  C.  R.  34, 

"  V.  Lea,  3  Alahama  602, 

"  V.  Lisle,  5  Halst.  348, 

"  V.  Little,  1  Verm.  R.  331, 

"  V.  Lorey,  2  Brev.  395, 

"  v.  Lovejoy,  Bull.  N.  P.  16, 

"  V.  Ludlow,  2  South.  772, 

"  V.  Lymbtirn,  1  Brev.  397, 

"  v.  Mair,  1  Co.xe  453, 

"  V.  Malher,  XJIiip.  32, 

"  V.  Ma.xwell,  5  Chii).  230, 

"  V.  M'Clure,  4  Blackf.  328, 

"  V.  M'Dowell,  6  Blaekf.  49, 

"  V.  M'Leran,  1  Aik.  312, 

"  V.  Millard,  18  Verm.  574, 

"  V.  Mills,  2  Dev.  420, 

"  v.      "      17  Maine  R. 211,   240-41,263 

"  V.  Molier,  1   Dev.  263,  131,  545 

•  "  V.  Montague,  2  M'Cord  257,      13,  SXi 

"  V.  Mooney,  f^  Alahama  328,  200 

»  V.  iMoses,  7  Blaekf.  244,  28 

"  V.  Muinlord,  1  Dev.  519;     '     2.-'0,  306 

"  V.  Mung(  r,  15  Verm,  290,  4,9,467,471 

"  V.  Murphy,  9  Port.  4b6,  2 


197 
9 
191 
201 
5i0 

19 
130 
7,  8 
494 
472 

24 
101 

25 

26 
147 

99 

2 

133, 136 

225 

9,  18 

604 

43 

24 


115 

2b3 

1 

479 

8 

114 

279 

114 

45 

9,  180 

'     481 

480 

7 

150 

451-52 

2I8-Ii> 


TABLE  Of  CASES. 


XVU 


State  V.  Murray,  15  Maine  R.  100,   334,  604 

"  V.  Nease,  2   Taylor's  (N.  C.)  R. 

270,  545, 547 

"  V.  Newell,  1  Mo.  R.  177,                  241 

"  V,  Newman,  2  Car.  Law  Repos.  74,    8 

"  V.  Nixon,  18  Venn.  70,          4,19,434 

"  V.  Odd,  2  Tr.  Con.  Rep.  S.  C.  758,  136 

"  V,  Orrdl,  1  Dev.  139,                          45 

"  V.  Owen,  1  Murpli.  452,                     44 

"  V.  Palmer,  18  Verm.  570,                 583 

"  V.  Parker,  1  Chap.  298,  -   132,  545-46 

"  V.  Patillo,  4  Hawks  34^,            224-25 

"  V.  Pearce,  Peck  66,                           212 

"  V.  Pendcrgrasg,  2  Dev.  &  Bat,  407,  1 1 5 

"  V.  Perrin,  1  Tr.  Con.  Rep.  446,      545, 

547 

"  V.  Pliclps,  11  Verm.  116,              12,  19 

«  V.  Pollock,  4  Ircddl  305,                  218 

"  V.  Pool,  2  Dev.  202,   .                    .      12 

"  V.  Posey,  1  Il'umph.  301,                   598 

"  V.  Potts,  4  Halst.  27,         /1 32,  545-46 

"  V.  Price,  6  Halst.  204-5-6,                  4 

"  V.  Randal,  2  Aik.  89,                164,  166 

"  V.  Rawlins,  8  Pick.  133,                   666 

"  V.  Rickey,  4  Ilulst.  293,    337,  384,  386 

"  V.  Ripley,  2  Brev.  382,                 12,25 

"  V.  Roach,  2  Hay.  552,                          9 

"  V.  Roe,  12  Verm.  93,                         186 

"  V.  Rooby,  3  flarrinjrt.  561,                  14 

"  V.  Roper,  1  Dev.  &,  J3at.  208,    423,453 

"  v.  Rose,  1  Alabama  29,                       ,    2 

"  V.  Rout,  3  HauUa  61S,                         IStJ 

"  V.  Rowley,  Brayt.  76,                         131 

"  V.  Sam,  a  slave,  2  Dev.  567,              128 

"  V,  Sandy,  la  slave,  3  Iredell  570,      184 

"  V.  Sansom,  3  Brev.  5,                         190 

"  V.  Schribeixer,  2  Gill  &  J.  246,       481 

"  V.  Soott,  2  Dov.  &,  Bat.  35,        212-13 

"  V.  Scroll,  1  Rich.  244,      -                 224 

"  v.  Show  ley,  5  Hay.  256,             131-32 

"  y.  Simpson,  2  Hawks  460,               213 

"  V.  Smith,  3  Hawks  378,  '                 446 

"  V.       "       2  Hurringt.  533,                   2 

"  V.       "     Peck  165,                                  9 

"  V.  Snow,  18  Maine  346,                   488 

"  V.  Somcrville,  21  Maine  586,            192 

"  V.  Soule,  20  Maine  R.  19,                  18 

"  V.  Spainhour,  2  Dev.  &  Bat.  547,    402 

"  V.  Sijicrin,  1  Brev.  119,                      218 

"  V.  Squires,  1  Tyler's  Verm.  R.  147, 

132,  545 

"  V.  Stanton,  1  Iredell  424,                  146 

"  V.  Stephens,  Wright's  Ohio  R.  73,    ]30 

"  V,  Stinson,  17  Maine  R.  155,           466 

"  V.  Street,  Ty.  158,                     130,  545 

"  V.      "         1  Murph.  156,       .          278 

"  V.  Strdl  and  Carr,  I  Rich.  244,       225 

"  V.  Stucky,  2  Blackf.  289,                  481 

"  V.  Swink,  2  Dev.  &  Bat.  368,          493 

"  V.  Taylor,  3  Rrev.  243,                      604 

"  v.  Thomas,  2  M'C.  .527,                    191 

"  V.  Thomson,  2  Rice's  Dig.  386,          9 

♦•  V.  Thompson,  Wriirht's  R.  617,           2 

««  V.  TiUery,  1  N.  &.  M'C.  9,               191 

"  V.  Tim,  3  Mnrph.  3,                            12 

"  V.  Tootle,  2  Harringt.  541,               190 


State  V.  Twitty,  2  Hawks  487,         131,  545 
"     V.  Vaughn,  1  Bay  282,  224 

"     V.  Vawter,  7  Blackf.  592,  113 

"     V.  Vittum,  9  N.  Hamp.  519,  7 

"     V.  Walker  and    Davidson,    Brev. 

MS.,  VVh.  C.  L.  443,  219 

"     V.  Waller,  3  Murph.  229,  423 

"     V.  Walsh,  2  M'C^ord  248,  545 

"     V.  Ward,  2  Hawks  443,  137 

"     V.  Washington,  1  Bay  120,  25 

"     V.  Waters,  3  Brev.  307,  130,  545 

"     V.      •'"        2  Tr.  Const.  R.  169,  130-31 

"     V.  Westfidd,  1  Bail.  132,  32 

.  '"     V.  Whaley,  2  Harris.  .538,  23 

"     V.  Wheeler,  3  Verm.  344,    '  212 

"     V.  Whisenhurst,  2  Hawks  458,       279 

"     V.  Whitworth,  8  Port.  435,  444 

"     V.  Wilkins,  17  Verm.  152,  8,  163 

".  V.  Wilkinson,  2  Verm.  480,  413 

.   "     V.  Williams,  2  M'Cord  301,  2,  13 

"     V.         "         3  Stew.  454,  2€ 

"     V.  Williamson,  3  Murph.  216,         196 

*    "     V.  Wilson,  2  Tr.  Con.  R.  49,  191 

"     V.         "       1  Port.  110,  191 

"    .V.         «       2  Rep.  Con.  135,  224 

■    "     V.  Wimberly,  3  M'Cord  190,    l50,  545 

"     V.  Witherow,  3  Murph.  153,  279 

"     V.  Yancey,  1  Tr.  Con.  Rep.  237,       25 

"     \.  Zale,  5  Halst.  348,  22 

Steinson  v.  State,  6  Ycrg,  531,  277-78 

.Stephen  v."  Com.,  2  Leigh  15.),  415 

Stephens  V.  My  CIS,  4  C.  &  F.  S40,  1 1 4 

Stewart  v.  Com.^  4  S.  &.  R.  194,  1^7 

Storoman  v.  Dutton,  10  Bing.  502,  .547 

Storrs  v.  State,  3  Miss.  45,  44 

Stout  v.  Com.,  11  S.  &  R.  177,     10,  44,  128 

Stow  v.  Converse,  4  Conn.  R.  18,  ■    547 

Suul)olt>.  Alford,  3  M.  &  VV.248,     U4,  526 

Swa^rircrty  y.  State,  9  Yerg.  338,  201-3 

Sweetiipple  v.  Jes.se,  5  B.  &.  Ad.  27,         547 


Tabart  v.  Tipper,  1  Cainpb.  3.52,  545 

Tarn  V.  State,  3  Miss.  43,  9 

Tanner  v.  Trustees  of  Albion,  5  Hill 

1-21,  439 

Teague's  case.  East  P.  C.  979,  130 

Tofft  V.  Com.,  8  Leigh  721,  24,  476 
Territory  v.  M'Farlanc,  1  .Mart.  224,  9,  43 
Thelluson  v.  Woodford,  4  Ves.  227,         109 

Thomas  v.  State,  6  .Miss.  457,  '       31 

Thorn  i)son  v.  Com  ,  4  Leigh  652,  9,  180 

Tipton  V.  State,  Peek  R.  >',  4,  30 

"       v.      "       2  Yerg.  542,  9,  457 

Tonilinson  v.   Britllebank,  4  B.  &,  Ad. 

630,  547 

Townley  v.  State,  3  Harris.  377,  23 

Tully  V.  Slate,  3  Humph.  323,  190 

"      V.  C:om.,  4  Mete.  357,  182 

Turns  v.     "     6  Melc.  225,  28.  8 

Turpin  V.  State,  6  Blackf.  72,  6,  332 

Tyler  v.        "    2  Humph.  37,  241 


XVIU 


TABLE  OF  CASES. 


u 

Updegraph  v.  Com.,  6  S.  &  R.  5,  13 
Usher  V.  Severance,  20  Maine  R.  50,       547 

U.  S.  V.  Almeida,  MS.,  G08 

"  V.  Ashton,  2  Sumn.  13,                     609 

"  V.  Babe,  MS.,                                     614 

"  V.  Barker,  5  Mass.  404,                .    609 

"  V.  Beiew,  2  Brock,  280,                    632 

"  V.  Burr,  4  Cranch  502,                       33 

"  V.  Bladen,  1  P.  C.  C.  R.  213,           609 

"  V.  Bonhain,  MS.,                               647 

"  V.  Britton,  2  Mason  464,  130-32,  545- 

46 

"  V.  Cassedy,  2  Sumn.  582,                 609 

"  V.  Davis,  iMS.,                                    619 

"  V.  Dickinson,  2  M'Lean  325,             14 

"  V.  Driscoll,  MS.,                                626 

"  V.  Eyerman,  MS.,                              503 

"  V.  Frosch,  MS.,                                284 

"  V.  Gardner,  5  Mas.  402,                    609 

"  V.  Gooding,  12  Wheat.  460,     619,  621 

"  V.  Haines,  5  Mass.  572,                    609 

"  V.  Hamilton,  1  Mas.  443,                  609 

"  V.  Hare,  2  VVliecl.  C.  C.  283,           627 

"  V.  Haskell,  4  VV.  C.  C.  R.  402,        609 

"  V.  Hemmer,  4  Mas.  105,                   609 

"  V.  Hewson,  7  Bost.  L.  P.  361,           94 

"  V.  Hinman,  1  Bald.  292,     131, 134,  545 

"  V.  Hoir,  MS.,                                     629 

"  V.  Holmes,  5  Wheat.  412,                  69 

"  V.  Hutchinson,  Pa.  L.  J.  June,  1848, 

206 

"  V.  Keefe,  3  Mas.  475.                        609 

"  V.  Kelly,  4  W.  C.  C.  R.  528,      609-10 

"  V.  Kromer,                                          631 

"  y.  Lancaster,  2  M'Lean  431,    630,  632 

"  V.  Lockinan,  1  Bost.  L.  Rep.,  N.  S., 

Aug.  1848,  274 

"  V.  Lusk,  MS.,                                   565 

"  V.  Mansfield,  MS.,                             625 

"  V.  Martin,  2  M'Lean  256,                 632 

«  V.  M'Carron,  MS.,                             629 

"  V.  Meyer,  MS.,                                   562 

"  V.  Mills,  7  Peters  138,                32,634 

"  V.  Morrison,  1  Sumn.  448,                609 

"  V.  Morrow,  4  W.  C.  C.  733,               32 

"  V.  Nott,  1  M'Lean  499,                     632 

"  V,  O'Brien,  MS.,                                283 

"  V.  Palmer,  3  Wheat.  611,                 616 

"  V.  Pctcr.son,  1  W.  &  M.  305,           611 

"  V.  Prior,  3  W.  C.  C.  R.  234,             640 

"  V.  Ravara,  2  Dall.  297,                       604 

"  V.  Rofrcrs,  3  Sumn.  312,                   609 

"  V.  Savage,  5  Mas.  460,                       609 

•'  V.  Sharp,  1  P.  C.  C.  R.  118,             609 

"  V.  Smith  and  Combs,  3  W.C.C.R. 

526,  609 


U.  S.  V.  Smith,  1  Mas.  147,  609 

"  V,      "     3  VV.  C.  C.  R.  78,  609 

"  V.  Snow,  .MS.,  274 

"  V.  Thomas,  MS.,  579 

"  V.  Thompson,  1  Sumn.  168,  609 

"  V.  Tilghman,  MS.,  629 

"  V.  Veal,  MS.,  611 

»  V.  Wilson,  1  Bald.  78,  628 

"  V.  Wood,  2  Wheel.  C.  C.  336,        1,  14 

"  V.  Worrell,  2  Dall.  384,  564,  5)^9 


Vandyke  v.  Dail,  1  Bail.  65,  2 

Van  Vetchin  v.  Hopkins,  5  Johns.  R. 

220,  547 

Vaughn's  case,  4  Burr.  2494,  580 

w 

Wakefield  v.  Mackey,  1  Phill.  R.  133,       10 
"  v.  Wakefield,  I  Hagg.  Cone. 

R.  400,  -  5 

Wallace  v.  Com.,  2  Va.  Cases  130,  519 

WaJlis  v.  Mease,  3  Binn.  546,  Mil 

Walsh  V.  State,  2  M'Cord  285,  ^  543 

Ward  v.  People,  3  Hill  N.  Y.  R.  395,      191 
Warner  v.  Com.,  1  Barr  154,     •  12,  23 

Weathers  v.  State,  2  Blackf.  279  279 

Weierback  v.  Tronc,  2  W.  &,  S.  408, 

224,225 

Wpinaorpflin  v.  State,  7  Black.  186,  1 

Weld  V.  Hornby,  7  East  199,  422 

Wenson  v.  Sayward,  13  Pick.  402,  191 

Wertel  v.  Com.,  5  Binn.  65,  420 

W- hitaker  v.  English,  1  Bay.  15,  32 

White  V.  Com.,  6  Binn.  179,  23,  72 

Whitehead  v.  R.,  14  L.  J.  (M.  C.)  165,        5 
Wiggins  V.  Armstrong,   2  Johns.  Ch. 

144,  ^  230 

Williams  v.  Bryant,  5  M.  &  W.  447,        10 
"        V.  Francis,  Fort.  R.  354,  7 

Wilson  V.  Lainson,  3  New  C.  307,  115 

Woodger  V.  Haddon,  5  Taunt.  138,  404 

Woodsides  v.  State,   2  How.  Miss.  R. 

655,  4,  26 

Wood  V.  Veal,  5  B.  &  Al.  454,  404 

Wood.s,  ot  al.,  v.  Com.,  1  B.  Mon.  74,       477 
Worcester  v.  State,  6  Peters  520,  25 

Wormorth  v.  Cramer,  4  Wend.  394,         546 
Wright   v.  Clements,  3  B.  »fc  Al.  503, 

545,  547 
"       V.  Rattray,  7  B.  &,  C.  266, 


Zenobia  v.  Aztel,  6  T.  R.  163, 


546,  547 


ERRATA. 

For  "  first  apprehendtd,"  on  p.  18,  8th  line  from  top,  read  "  first  brought." 
"    '•  Harrison,"  on  p.  23,  note,  read  '•  Harrington." 
♦'    "7  Peters  38,"  on  p.  32,  3d  line  from  foot,  read  "  7  Peters  138.'-' 
"    "  post.  p.  85,  n.  g.,"  on  p.  33,  29th  line  from  top,  read  "  post  p.  83,  n.  f." 
"   «  Com.  V.  Bowen,  15  Mass.,"  on  p.  38,  1st  line  of  note,  read  "  Com.  r.  Bowen,  13  Mais." 
«    «  People  V.  Kingsley,  6  Cow.,"  on  p.  13,  22d  line  from  top,  read"  People  T.  Kingsley,  2  CoW." 
«    "  People  V.  Sttarnsj  21  Wend.,"  on  p.  136,  8tli  line  from  foot,  read  •'  People  v.  Stearns,  2  Wend." 
"    "  People  V.  Stearns,  21  Wend.,"  on  p.  154,  lUh  line  from  foot,  read  "  People  v.  Steams,  2  Wend." 
«    "  People  V.  Davis,  21  Wend.,"  on  p.  163,  Sth  line  from  foot,  read  "  People  r.  Davis,  2  Wend." 

After  "  falsely,"  on  p.  239,  7th  line  from  top,  insert  "  and  designedly." 
"  "  falsely,"  on  p.  245,  4th  line  from  foot,  insert "  and  designedly." 
"    "  falsely,"  on  p.  254, 19th  line  from  foot,  insert  "  and,  designedly." 

For  "  her,"  on  p.  254,  15th  line  from  top,  read  "  prosecutor." 
"    "  ante,"  on  p.  320,  12th  line  from  foot,  rearf"  8  C.  &  P." 

«    •*  Com.  V.  Kingsbury,  Mass.  106,"  on  p.  333,  23d  line  from  top,  read  "  Com.  v.  Kingsbury,  5  Mass.  106. 
"    "  R.  V.  Cross,  2  Canipb.  224,"  on  p.  403,  10th  line  from  top,  read  "  R.  v.  Cross,  3  Campb.  337." 
"    "  Stat.  1825,  c.  1841,"  on  p.  484,  20th  line  from,  top,  read  "  Swt.  1825,  c.  184." 


BOOK   THE    FIRST 


GENERAL   FORM   OF   INDICTMENT, 


CHAPTER   I. 
CAPTION. 

General  Form. 


Washington.  {Stating  ihe  name  of  county).  Ax{a)  the  gene- 
ral quarter  sessions  of  the  peace  [stating  style  of  court),{b)  holden 
at  Washington  (stating  county  town,  or  wherever  the  court  is  hold- 
en)  in  and  for  the  county  aforesaid, (c)  the  day  of  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  forty, (f/)  before  A. 
B.  and  C.  D.,  esquires,  and  others  their  associates,  justices  of  the  said 
state,  assigned  to  keep  the  peace  of  the  said  state,  and  also  to 
hear  and  determine  divers  felonies,  trespasses  and  other  misde- 
meanors, in  the  said  county  committed,  by  the  oath  of  {naming 
the  grand  jurors),{e)  good  and  lawful  men(/)  of  the  county 
aforesaid, (^)  then  and  there  sworn  and  charged(A)  to  inquire  for  the 
said  state,  and  for  the  body  of  the  county  aforesaid,  it  is  presented 
that,  &c.(/) 

(a)  This  is  equivalent  to  saying  that  tlie  jury  were  sworn  in  open  court ;  Weinzorpflin 
r.  State,  7  Blackford  186. 

(6)  The  style  should  properly  represent  the  court,  so  as  to  show  it  to  have  jurisdiction, 
this  being-  the  chief  object  of  tlic  caption;  Dean  v.  State.  Mart.  «&  Ycr^.  127;  State  v. 
I.isle,  5  Ilalst.  348;  2  Hale  165;  2  Hawk,  c  25,  s.  116,  117,  118,  119,  120;  Burns'  Just. 
21Hh  ed.,  Indict,  ix. 

(c)  "County  aforesaid"  is  not  enoufjh,  unless  there  be  express  reference  to  the  county 
in  the  margin;  2  Hale  180;  3  P.  Wins.  439;  U.  S.  r.  Wood,  2  Wheel.  C.  C.  336. 

(«/)  Neitiier  the  term  nor,  it  seems,  the  date  need  be  set  out;  State  v.  Haddock,  2  Hawks 
462. 

(e)  It  is  no  ground  for  arresting  judgment  afler  conviction  on  an  indictment,  that  it  ap- 
pears from  the  record  that  the  grand  jury,  who  found  the  hill,  cons^isted  only  of  tirteen 
persons;  State  r.  Davis,  2  Iredell  153.  By  the  common  law,  a  grand  jury  may  consist  of 
any  number  between  twelve  and  twenty-three.  The  North  Carolina  statute  upon  the  sub- 
ject  of  a  grand  jury,  is  only  directory  to  the  court,  and  does  not  declare  void  a  bill  or  pre- 


CAPTIOPf. 


scnfment  found  by  a  grand  jury  consisting  of  the  common  law  number ;  Slate  v.  Davis,  3 
Irudell  153. 

(/)  Tlie  adequacy  of  this  averment,  together  with  those  that  follow,  was  discussed  by 
the  Supreme  Court  of  Indiana,  in  a  late  learned  opinion ;  Beauchamp  v.  State,  6  Blackford 
304.  "This  general  representation  of  the  qualifications  of  grand  jurors,"  it  was  said,  "has 
always  been  held  to  be  sufficient,  even  when  the  record  comes  from  a  court  of  special  and 
limited  jurisdiction  ;  if  it  comes  from  a  superior  court,  even  tlie  omission  of  these  words  is 
not  fatal,  because  all  men  shall  be  presuined  to  be  'good  and  lawful'  until  the  contrary  ap- 
pears; 1  Chit.  C.  L.  333;  Bac.  Abr.  Indictment  i. ;  2  Hawk.  c.  25,  s.  17,  3.  It  ia  alleged 
tliere  is  uncertainty  in  the  time  and  place  of  swearing  and  charging  the  grand  jury.  The 
caption  shows  that  at  the  May  term,  1641,  of  the  Vig-o  Circuit  Court,  and  on  the  third  day 
ot  that  month,  the  jurors  (naming  them)  appeared  in  court,  and  being  duly  sworn  and 
cliarged,  &.C.  The  defect  complained  of  is  the  omission  of  the  words  'then  and  there' 
before  'sworn  and  charged.' 

"Tlie  case  of  The  People  v.  Guernsey,  3  Johns.  Cases  265,  is  relied  on  to  support  this 
objection.  It  appears  to  us  that  it  has  a  contrary  bearing.  Tiic  omission  of  the  words 
'then  and  there,'  in  reference  to  the  swearing  and  charging  the  grand  jury,  was,  indeed, 
held  to  be  a  fatal  delect  in  the  caption  of  the  indictment.  But  the  decision  turned  on  the 
fact,  that  the  record  was  certified  from  a  court  of  inferior  jurisdiction,  and  it  admitted  that 
the  law  is  otherwise  wiien  tlie  indictment  is  from  a  superior  court.  Our  circuit  courts 
are  vested  with  public  and  and  very  ample  jurisdiction,  and  are  not  in  contemplation  of 
law  infeiior  courts.  That  writs  of  error  lie  to  them  from  the  Supreme  Court,  does  not 
give  them  that  character.  Writs  of  error  run  to  the  English  Common  Pleas  from  the 
King's  Bench,  and  to  botli  from  the  Exchequer  Chamber;  but  these  tribunals  have  always 
been  ranked  among  the  superior  courts,  the  highest  indeed  in  the  kingdom.  The  princi- 
pal object  of  the  caption  is  to  show  the  jurisdiction  of  the  court  in  which  the  indictment 
Was  found.  More  certainty  therefore  is  requisite,  when  it  is  brought  from  a  court  of  spe- 
cial jurisdiction,  than  when  it  comes  from  a  superior  court.  In  the  latter  case  the  omis- 
sion of  the  words  '  then  and  there,'  in  respect  to  the  swearing  and  charging  the  grand  jury, 
is  not  fatal ;  and  it  may  be  vi'ell  doubted  whether  it  is  in  any  case;  1  Chit.  C.  L.  334;  2 
Hawk.  c.  25,  s.  126;  Bac.  Abr.  Indictment  i. ;  Arch.  C.  P.  24." 

As  to  the  strictness  requisite  in  drawing  the  caption,  great  variety  of  sentiment  exists. 
In  North  C'arolina,  the  courts  have  gone  so  far  as  to  pronounce  no  necessity  to  exist  for  a 
e.iptinn  at  all,  except  where  the  court  acts  under  a  special  commission;  State  v.  Brickell, 
1  ilawks  3r)4  ;  State  v.  Haddock,  2  Hawks  462;  see  1  Saunders  250,  d.  n.  i.  Where  it  is 
wjiolly  omitied  in  the  court  below,  it  may  be  supplied  on  error  by  the  minute  of  the  clerk 
ciu  the  bill  at  the  lime  of  jiresentment,  and  the  general  record  of  the  term  ;  State  v.  Gilbert, 
13  Verm.  647:  State  v.  Murphy,  9  Port.  486;  State  v.  Smith,  2  Harringt.  532 ;  Kirk- 
j)atrick  w.  Stale,  6  Miss.  47i;  State  v.  Thompson,  Wright's  R.  617;  State  v.  Rose,  I 
Alabama  2L>.  In  fact  in  most  of  the  states  it  is  now  rarely  tacked  on,  except  in  error.  In 
I'ennsylvania,  Pa.  v.  Bell,  Add,  ,56;  in  South  Carolina,  State  v.  Williams,  2  IM'Cord  301; 
Vandyke  v.  Dail,  1  Bail.  ^5;  in  Indiana,  Moody  r.  State,  7  Blackford  424;  and  in 
New  Jersey,  .■~!tate  v.  Jones,  4  Halst.  457,  it  seems  it  can  be  amended  when  in  the  court 
below,  by  reference  to  the  records  of  the  term,  or  when  in  error,  by  proper  evidence  of  the 
iucLs. 

POR.MS  OF  CArTIONS. 

il  Court  of  the  Unitrd  Slates  of  America,  for  the  Southern  District  of  New  York  in 

the  Second  Circuit, 
f      At  a  Stated  I'erm  of  the  Circuit  Court  of  the  United  States  of  America  for  the 
Southern  District  of  New  York,  in  tlie  Second  Circuit,  begun  and  held  at  the  City 
of  New  York,  within  and  for  the  circuit  and  district  aforesaid,  on  the  of" 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

(Also)  at  a  Special  Term,  tfcc. 

At  an  additional  sessions  of  the  Circuit  Court  of  the  United  States  of  Amcrira 
for  the  Southern  District  of  New  York,  in  the  Second  Circuit,  begun  and  held  at 
the  City  of  New  York,  vvitliin  and  for  the  circuit  and  district  alorcsaid,  on  the 
of  in  tiie  year  of  our  Lord  one  thousand  eight  hundred  and 

At  a  Stated  Term  of  tlie  Circ\iit  Court  of  the  United  States  of  America  for  the 
S'tiilii'Tn  District  of  New  York  in  the  Second  ('iicuil,  begun  and  held  at  the  City 
of  New  York,  within  and  fur  the  circuit  and  district  aforesaid,  on  the  day 

of  in  tlic  year  of  our  Lr)rd  one  thousand  eight  himdrcd  and  and 

eontinufd  l)y  adjournment  (or  adjournments)  to  the  day  of  in  tlir  year  last 

.  ttforesuid. 


Circu 


GENERAL  FORM.  3 

District  Court  of  the  United  States  of  America  for  the  Southern  District  of  New  York, 
At  a  Stated  Term  of  the  District  Court  of  the  United  States  of  America  for  the 
Southern  District  of  New  York,  begun  and  held  at  the  City  of  New  York,  within 
and  for  the  district  aforesaid,  on  the  first  Tuesday  of  in  the  year  of  our  Lord 

.2    !  one  thousand  eight  hundred  and 
5^ 


(J  j      At  a  Special  Term,  &c. 


At  a  Stated  Term  of  tlic  District  Court  of  the  United  States  of  America  for  the 

Southern  District  of  New  York,  begun  and  held  at  the  City  of  New  York,  within 

and  for  the  district  aforesaid,  on  the  first  Tuesday  of  in  the  year  of  our  Lord 

one  tlioiisand  cig-Jit  liundred  and  and  continued  by  adjournment  (or  ad- 

\_journiiients)  to  the  day  of  in  the  year  last  aforesaid. 


Slate  of  New  Jersey,  Sussex  County,  ss. 

Be  it  remembered.  That  at  a  Court  of  Oyer  and  Terminer  and  General  Gaol  Delivery, 
holden  at  Newton,  in  and  for  said  County  of  Sussex,  on  the  fourth  Tuesday  in  May,  in 
the  year  of  our  Lord  one  thousand  eight  liundred  and  twenty-seven,  before  the  Honour- 
able Gabriel  H.  Ford  Esq.,  one  of  the  justices  of  the  Supreme  Court  of  Judicature  of  the 
State  of  New  Jersey,  and  John  Gustin,  Joscpli  Y.  Miller,  Walter  L.  Shec,  Aaron  Hazen, 
and  others,  their  fellows,  judges  of  the  Liferior  Court  of  Common  Pleas  in  and  for  the 
said  county,  according  to  the  form  of  the  statute  in  such  case  made  and  provided,  by  the 
oaths  of  Elijah  Eniitt,  Absalom  Dunning,  John  Layton,  Nathaniel  Vanauken,  Isaac  Be- 
dell, Philip  Smith,  Philip  VVyker,  Thomas  A.  Dildine,  Thomas  B.  Egbert,  Joseph  Greer, 
William  D.  Johnson,  Abraham  Dunning,  Andrew  Wilson,  David  Cumpton,  Lewis  Shu- 
man,  Nicholas  J.  Cox,  John  Lennington,  Zenas  Hurd,  and  by  the  solemn  affirmation  of 
William  Green,  who  alleges  himself  to  be  conscientiously  scrupulous  of  taking  an  oath, 
good  and  lawful  men  of  the  said  county,  sworn,  affirmed  and  charged  to  inquire  for  the 
state,  in  and  for  the  said  body  of  the  said  County  of  Sussex,  it  is  presented  in  manner  and 
form  following,  that  is  to  say  :  Sussex  County,  ss.  The  jurors  of  the  state  of  New  Jersey, 
for  the  body  of  tiie  county  of  Sussex,  upon  their  oaths  and  affirmation,  W'illiam  Green,  one 
of  the  said  jurors,  being  the  only  person  who  affirmed,  on  the  said  jury,  alleging  himself 
to  be  conscientiously  scru[)ulous  of  taking  an  oath,  present  that  Zachariah  Price,  late  of 
the  township  of  Vernon,  in  the  County  of  Sussex  aforesaid,  not  having  the  fear  of  God  be- 
fore his  eyes,  but  being  moved  and  seduced  by  the  instigation  of  the  devil,  on  the  twenty, 
fifth  day  of  March,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  twenty-seven, 
with  force  and  arms,  &c.,  at  the  township  aforesaid,  in  the  county  aforesaid,  and  within 
the  jurisdiction  of  this  court,  one  barn  of  the  property  of  one  Nicliolas  Ryerson,  not  parcel 
of  the  dwelling  house  of  the  said  Nicholas  Ryerson  there  situate,  wilfully  and  maliciously 
did  burn  and  caused  to  be  burned,  to  the  great  damage  of  the  said  Nicholas  Ryerson,  to 
the  evil  example  of  all  others  in  the  like  case  offi-'ndiiig,  contrary  to  the  form  of  the  sta- 
tute in  such  case  made  and  provided,  against  tiie  peace  of  this  state,  the  government  and 
dignity  of  the  same.  And  afterwards,  tliat  is  to  say,  at  the  same  Court  of  Over  and  Ter- 
miner and  General  Gaol  Delivery,  holden  at  Newton  aforesaid,  in  the  county  aforesaid,  on 
Monday  the  twenty-eighth  day  of  May,  in  the  year  last  aforesaid,  before  the  said  Mnnour- 
able  Gabriel  H.  Ford  Esq.,  justice  of  the  Supreme  Court  of  Judicature,  and  John  Gustin, 
Joseph  Y.  Miller,  Walter  L.  Shee,  Aaron  Hazen,  and  others  their  fellows,  judofes  of  the 
Inferior  Court  of  Common  Pleas  in  and  for  the  said  county,  comcth  the  said  Zachariah 
Price,  in  his  proper  person  according  to  t!ic  condition  of  the  recognizance  by  liimself,  and 
his  pledges  in  that  behalf  heretofore  made  and  now  here,  touciiing  the  premises  in  the 
said  indictment  above  specified  and  charged  upon  him,  being  asked  in  what  manner  he 
will  acquit  himself  thereof,  he  says  he  is  not  guilty  tliereof,  and  of  this  he  puts  himself 
upon  the  county;  and  the  said  Alpheus  Gustin  Esq.,  who  prosecutes  for  the  state  in  tliis 
behalf,  does  likewise  the  same;  wherefore  let  a  jury  thereupon  come,  to  wit,  on  Monday 
the  twenty-eighth  day  of  May,  in  the  year  of  our  Lord  eiglitecn  hundred  and  twenty-seven, 
and  as  yet  of  the  said  term  of  May,  before  tiie  said  the  Honourable  Gabriel  H.  Ford  Esq  , 
one  of  the  justices  of  the  Supreme  Court  of  Judicature,  and  John  Gustin,  Joseph  Y.  Mil- 
ler, Walter  L.  Shee  and  Aaron  Hazen  Esqrs.,  and  others  their  fellows,  judges  of  the  Infe- 
rior Court  of  (Common  Pleas  in  and  for  the  said  county,  of  good  and  lawlul  men  of  tlic 
County  of  Sussex  aforesaid,  by  whom  the  truth  of  the  matter  may  be  the  better  known, 
and  who  are  not  of  kin  to  the  said  Zachariah  Price,  to  recognize  upon  their  oaths,  whether 
the  said  Zachariah  Price  be  guilty  of  the  misdemeanor  in  the  indictment  aforesaid  above 
epecified,  or  not  guilty,  because  as  well  the  said  Alpheus  Gustin  Esq.,  who  prosecutes  for 
the  state  in  this  behalf,  as  the  said  Zachariah  Price,  have  put  themselves  upon  tlie  said 
jury,  and  the  jurors  of  tlie  said  jury,  by  Benjamin  Ilamiltou  Esq.,  high  sheriff  of  the  said 


4  CAPTION. 

County  of  Sussex,  for  this  purpose  cmpanneled  and  returned,  ag'iecably  to  the  statute  in 
such  case  made  and  provided,  to  wit,  John  Cummins,  Matthew  Ayres,  Lewis  Havens, 
Sylvenus  Adams,  WilUam  Milcham,  Jacob  Miller,  Niciiolas  Ackcrson,  Gabriel  Post,  Lewis 
Peters,  Josei)h  Predmon,  Lewis  Dennis  and  Samuel  H.  Hibler,  who  being  elected,  tried 
and  sworn  and  affirmed,  the  said  Lewis  Dennis,  one  of  the  said  jurors,  being  the  only  per- 
son who  was  aflirmcd  on  the  said  jury,  alleging  himself  to  be  conscientiously  scrupulous 
of  taking  an  oath  to  speak  the  truth  of  and  concerning  the  premises,  upon  their  oaths  and 
affirmation,  say  that  the  said  Zachariah  Price  is  guilty  of  the  misdemeanor  aforesaid  on 
him  above  charged  in  the  form  aforesaid,  and  as  by  the  indictment  aforesaid  is  above  sup- 
posed against  him;  and  upon  this  it  is  forthwith  demanded  of  the  said  Zachariah  Price  if 
he  hath  or  knoweth  of  any  thing  to  say  vvlierefore  thesaid  justice  and  judges,  and  their 
fellows  as  aforesaid  here,  ought  not  upon  the  premises  and  verdict  aforesaid,  to  proceed 
to  judgment  against  liim,  who  nothing  further  saith,  unless  as  he  before  had  said ;  where- 
upon all  and  singular  the  premises  being  seen,  and  by  the  said  justice  and  judges,  and 
tlieir  fellows  as  atbresiad,  here  fully  understood,  it  is  considered  by  the  court  here  that  the 
said  Zachariah  Price  be  confined  and  imprisoned  at  hard  labour  in  the  state's  prison  for 
tlie  term  of  ten  years. 

Tlie  ca])tion  to  the  panel  of  the  grand  jury  was  as  follows: 

List  of  the  names  of  persons  summoned  to  attend  at  the  Court  of  Oyer  and  Terminer 
and  General  Gaol  Delivery,  to  be  holden  at  Newton,  in  and  for  the  County  of  Sussex  iti 
the  State  of  New  Jersey,  in  the  term  of  May,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  twenty-seven,  pursuant  to  the  statute  in  such  case  made  and  provided,  by 
me,  viz.  A.  B.,  C.  D.,  «fcc.,  naming  the  jurors. 

Subscribed.     B.  H.,  -b'Aer/J.— (State  v.  Price,  6  Halst.  204,  205,  20G). 

City  and  County  of  Netc  York,  ss, 

lie  it  remembered.  That  at  a  Court  of  General  Sessions  of  the  Peace,  holden  at  the 
Halls  of  Justice  of  the  City  of  New  York,  in  and  for  the  City  and  County  of  New  York, 
on  tlie  first  Monday  of  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

forty-  before  Esquire  of  the  said  City  of  New  York,  and  two  of 

the  aldermen  of  the  said  city,  judges  of  the  said  court,  assigned  to  keep  the  peace  of  the 
said  City  and  County  of  New  York,  and  to  inquire,  by  the  oaths  of  good  and  lawful  men 
of  the  said  county,  of  all  crimes  and  misdemeanors  committed  or  triable  in  the  said 
county,  and  to  hear,  determine,  and  punish  according  to  law,  all  crimes  and  misdemean- 
ors in  the  said  City  and  County,  done  and  committed,  not  punishable  with  death. 
By  the  oath  of  foreman,  (here  setting  forth  grand  jurors). 

It  was  presented  as  follows,  that  is  to  say.  City  and  County  of  New  York,  ss  :  The  jurors 
of  the  people  of  the  State  of  New  York,  in  and  for  the  body  of  the  City  and  County  of 
New  York,  upon  tlieir  oath  present  that,  &c. 

• 

Slate  of  Vermont,  Windsor  County,  ss. 

Be  it  letnemhered,  'I'hat  at  the  county  court  begun  and  liolden  at  Woodstock,  within 
and  for  the  Comity  of  Windsor,  on  the  first  Tuesday  of  November,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  forty-five:  The  grand  jurors  within  and  for  the 
body  of  the  County  of  Windsor  aforesaid,  now  here  in  court  duly  cmpanneled  and  sworn, 
upon  their  oath  piesent  that,  &c.  (Sec  State  v.  Nixon,  18  Verm.  70;  Slate  v.  Munger, 
15  Verm.  2lf0). 

( /j)  The  jury  must  apjiear  to  be  of  the  "county  nforcsnid;"  Tipton  v.  State,  Peck's  R. 
8;  Cornell  v.  State,  Mart.  &  Yerg.  147;  Wh.  C.  L.  631  ;  though  the  allegation,  "cm- 
panneled and  sworn  in  and  for  the  founty  of  Wilkinson  and  state  of  Mississippi,"  may 
supply  its  place;  Woodsides  v.  State,  2  How.  Miss.  R.  G55. 

In  New  Jersey,  where  the  caption  stales  tlie  finding  to  be  on  the  oath  and  affirmations 
of  th<;  grand  jury,  it  must  ap|)ear  thiit  the  nfiirming  jurors  were  persons  entitk^d  by  law  to 
take  affirmations  instead  of  oaths;  Slate  v.  Harris,  2  llalst.  157;  see  note  poslr/(,]i.'2'-l.  This 
parlieulaiity  does  not  seem  elsewhere  to  have  been  held  necessary;  see  Archbold's  C.  P.  5th 
Am.  cd.  34. 

(h)  The  omission  of  the  allegation  "then  and  there  sworn  and  charged,"  in  New  York, 
lias  been  held  fatal;  Peo|)le  w.  Guern.sey,  3  Johns.  205;  though  in  Mississippi,  "then  and 
theic"  are  not  considered  indispensable  ;  Woodsides  v.  State,  2  How.  Miss.  R.  055  ;  and  tlicy 
do  not  apjiear  in  the  precedent  given  by  Mr.  Arehbold;  Archbold's  C.  P.  5th  Am.  ed.  34. 
As  ajipears  in  note  /,  p.  2,  the  omission  in  Indiana  is  considered  no  error. 

(i)  See  as  to  this  fbrm  generally,  Archbold's  C.  P.  5lh  Am.  cd.  33 ;  2  Hale  1G6  ;  R.  v. 
Tearnly,  1  Leach  425;  Wh.  C.  L.  03. 


GENERAL  FRAME  OF  mOICTMENT,  &C. — NAME  OF  DEFENDAXT. 


CHAPTER  11. 

GENERAL  FRAME  OF  INDICTMENT  AT  COMMON  LAW. 

The  jurors  for,  &c.,(a)  inquiring  for,  &c.,(i)  upon  their  oath(c)  do 
present  that  A.  B.(^)  late  of  the  said  county,  yeoman, (e)  on  the(/) 
with  force  and  arms,(^)  at  aforesaid,  in  the  county 

aforesaid, (A)  and  within  the  jurisdiction  of  the  said  court,  in  and  upon, 
&c.,  one  E.  F.,  &.c.,{i)  with  intent,  &ic.,{j)  against  the  form  of  the  sta- 
tute (or  statutes)  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  (of  the  sovereign  author ity).(k) 

2d  count.  And  tlie  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present  that  the  said  A.  B.  aforesaid,  to  wit,  on  the  day  and 
year  aforesaid,  at  in  the  county  and  within  tlie  jurisdiction 

aforesaid,  did,  &c.(/) 

(Conclude  as  in  first  count). 

(a)  The  jurors  "oP  instead  of  "for,"  is  not  bad  on  arrest  of  judgment;  R.  ».  Turner, 
a  M.  &  Rob.  214,  Parke  J.;  see  1  Chit.  C.  L.  327. 

ib)  At  Common  Law  the  jurors  must  appear  to  be  of  tlie  county;  Whitehead  v.  R.,  14 
Law  J.  (M.  C.)  1G5;  see  postea,  p.  14,  et  seq.,  for  the  forms  and  authorities  in  the  several 
states. 

(c)  Where  the  jurors  entertain  conscientious  objections  to  taking  an  oath,  the  proper 
course  is  to  insert  "oaths  and  affirmations;"  Dickinson's  Q.  S.  200;  Key's  case,  9  C.  &,  P. 
78;  and  this  is  always  the  case  in  Pennsylvania,  though  in  tiie  remaining  states,  the  prac- 
tice has  been  relaxed,  and  the  phrase  "oath"  seems  adopted  as  a  settled  form. 

((/)  In  this  note  will  be  considered  first,  in  what  way  the  defendant's  name  is  to  be  set 
out;  and  secondly,  in  what  cases  several  defendants  may  be  joined. 

1st.  /ft  what  way  lite  defrndanCs  name  is  to  he  set  out. 

The  christian  and  surname  of  the  defendant,  if  known,  should  be  stated  with  correct- 
ness; except  in  an  indictment  against  the  inliabitants  of  a  county  or  parish,  who  may  he 
so  described  without  naming  any  of  them;  Hawk.  b.  2,  c.  25,  s.  68;  Archbold's  C.  P.  25. 
Wh.  C.  L.  65.  In  Pennsylvania,  under  an  act  directing  the  "president,  managers  and 
company"  of  a  certain  road  to  remove  a  particular  gate,  it  was  held  that  an  indictment 
of  those  officer  or  officers  individually  for  a  violation  of  the  act,  was  bad;  though  the 
court  declined  saying  whether  they  would  have  sustained  an  indictment  charging  the  de- 
fendants as  a  corporation;  C"om.  c.  Demuth,  12  S.  &  R.  389.  But  the  weight  of  authority 
elsewhere  is  that  the  members  of  a  corporation  when  indicted  for  a  corporation  offence, 
must  be  charged  individually;  Slate  v.  Great  Works,  20  Maine  41 ;  Com.  v.  Switl-Run  Gap, 
2  Va.  Cases  362.  But  if  the  name  of  a  prisoner  is  unknown,  and  he  refuses  to  disclose  it, 
an  indictment  may  be  sustained  against  him  as  "a  person  whose  name  is  to  the  jurors 
unknown,  but  who  is  personally  brought  before  the  said  jurors  by  ,  the  keeper  of  the 

prison  of  ;  R.  r.  ,  R.  &,  R.  489.     A  man  cannot  be  indicted  with  an  alias 

dictus  of  the  christian  name,  as  '■^  John,  otherwise  Robert"  though  to  an  alias  of  tlie  sur- 
name there  is  no  objection;  1  Ld.  Raym.  500;  surnames  beinjr  originally  acquired  by 
assumption.  See  cases  collected,  5  M.  &  W.  447;  see  also  per  I-ord  Stowell,  Wakefield  v. 
Waketield,  I  Hagg.  Cons.  R.  400;  Barlow  v.  Batcman,  3  P.  Wms.  64.  An  indict- 
ment was  quashed  before  plea,  because  an  addition  was  placed,  not  atler  the  first  name, 
but  after  the  alias  dictus;  R.  v,  Semple,  1  I^each  420;  but  this  defect  is  cured  by  plea,  R. 
f.  Harmam,  ib.  n.;  see  Cro.  Jac.  482,  610.  The  cases  tend  to  show  that  if  a  defendant  has 
more  tiian  one  christian  name  given  him  in  baptizm,  as  John  Thomas,  they  are  considered 
ill  law  as  forming  one  christian  name,  and  must  be  set  out  correctly  in  their  order;  C^om. 
r.  Perkins,  1  Pick.  388;  Jones  v.  Macquillon,  5  T.  R.  195;  3  East  111;  WiUcs  5.>i : 
12vaias  V,  King,  Pougcl  t>.  Tomkins,  1  Phiil.  H.  499  :  Stanhoi>e  v.  Baldwin.   1  Addams'  R. 

1  • 


t>  WHEN  SEVERAL  DEFENDANTS  MAT  BE  JOINED. 

93 ;  sec  1  M.  &.  Gr.  783,  n.,  tlioiiirh  in  New  York  it  is  declared  lliat  a  middle  name  is  sur- 
plusage, and  its  omission  to  be  disregarded  ;  Roosevelt  v.  Gardiner,  2  Cow.  463.  The  pro- 
per name  of  a  bastard  is  that  he  has  gained  by  reputation,  and  not  his  mother's  name, 
unless  so  gained  ;  R.  v.  Clark,  R.  &  R.  358. 

2d.  {In  what  cases  several  defendants  may  he  joined).  Where  the  felony  is  such  as 
several  may  join  in,  e.  g.  house-breaking,  larceny,  &,c.,  and  it  is  believed  that  several  have 
joined  in  committing  it,  in  several  degrees,  c.  g.  as  principal  in  the  first  or  second  degree, 
or  as  accessaries  before  or  after  the  fact,  they  may  all  be  indicted  jointly;  2  Hale  173; 
Kaiie  v.  People,  9  Wend.  203;  Com.  v.  Elwcll,  2  Met.  190;  Com.  v.  Gillespie,  7  S.  &  R.  469; 
Keg.  V.  Puliiam,  9  C.  &  P.  280;  and  the  like  in  misdemeanors,  where  all  are  principals, 
e,  g.  extortion,  battery,  &c. ;  a  keeping  a  gaming  house,  &-c.,  2  Burr.  984;  adultery.  Com. 
V.  Elwell,  2  Met.  190;  and  the  same  rule  bears  though  the  several  parties  may  have  acted 
separately,  if  the  grievance,  e.  g.  the  nuisance,  is  tlie  result  of  all  their  acts  jointly,  they 
may  be  joined  in  an  indictment  staling  the  acts  to  have  been  several;  R.  v.  Stafford  and 
others,  1  13.  &:.  Ad.  874.  This  in  England  is  said  by  Mr.  Serjeant  Talfourd  to  be  the  more 
usual  and  convenient  course;  though  a  distinct  indictment  might,  in  point  of  law,  be 
manitaincd  against  each,  as  all  offences  are,  in  theii  nature,  several ;  Reg.  v.  Atkinson  et  al., 
Ld.  Raym.  1248;  Salk.  32;  Com.  v.  flarley,  7  Met.  402.  A  joint  indictment,  how- 
ever, [irejiarcd  on  this  basis,  is  in  its  nature  several  also ;  for  the  issues  upon  it  are  joined  dis- 
tiiictly  between  the  prosecution  and  each  defendant;  the  defendants  may  plead  in  different 
ways,  and  although  they  plead  similar  pleas,  may,  in  case  of  felony,  procure  several  trials 
by  severing  in  their  challenges.  So  also  some  may  be  convicted  and  others  acquitted, 
except  where  the  offence  is  one  which  cannot  be  committed  by  less  than  two,  as  con- 
upiraey  ;  or  less  than  three,  as  riot;  when  if  the  jury  acquit  all  the  parties  charged  on  the 
record  but  one,  in  the  fiist  case,  or  two  in  the  second,  all  must  be  acquitted,  unless  it  is 
laid  and  found  that  the  offence  was  committed  with  others  to  the  jurors  unknown.  Thus, 
several  may  be  joined  in  an  indictment  for  publishing  a  libel,  where  all  joined  in  the 
publication;  R.  v.  Benfield  and  Saunders,  2  Burr.  R.  980;  and  for  obtaining  money  under 
false  [)retences,  when  all  were  present  aiding  and  assisting  in  the  common  object  of  fraud  ; 
Reg.  V.  Young  et  al.,  1  Leach  505;  Com.  v.  Call,  21  Pick.  515;  Com.  v.  Harley,  7  Met. 
402.  Three  were  jointly  charged  with  procuring  certain  other  persons  to  utter  a  forged 
will.  The  only  evidence  for  the  crown  was  of  separate  acts,  done  at  separate  times  and 
places  by  each  of  the  persons  charged  as  accessaries;  at  the  end  of  that  evidence,  one 
pleaded.  For  the  rest  it  was  said,  that  only  one  could  on  the  evidence  be  convicted.  It 
was  held,  however,  that  the  rest  might  be  convicted;  Reg.  ».  Barker  and  others,  C.  & 
K. 442. 

But  where  the  offence  of  each  is  entirely  distinct  in  its  nature,  or  arises  out  of  some 
personal  duty  or  omission,  each  ought  to  be  separately  indicted,  or,  at  all  events,  severally 
ciiarged.  Thus,  indictments  against  two  or  more  jointly  for  perjury,  as  conmion  scolds, 
or  for  exercising  a  trade  without  serving  an  apprenticeship,  are  bad  ;  for  the  act  complained 
of  are  essentially  and  necessarily  several;  R.  v.  Phillips  and  others,  2  Strange  921  ;  Reg. 
B.  Ilodson,  6  Mod.  210.  And  though  several  defendants  may  be  included  in  one  indict- 
ment for  several  distinct  n)isdemeanors  of  the  same  kind,  as  for  severally  keeping  dis- 
orderly houses;  2  Hale  174,  cited  R.  v.  Kingston  and  others,  8  East  R.  4;  it  is  neitlier 
discreet  or  proper,  for  the  court  might  (at  all  events  before  plea,  or  as  it  seems,  even  before 
the  jury  is  charged  with  them;  Reg.  v.  Norton,  8  C  &.  P.  196),  quasii  such  an  indict- 
ment for  any  inconvenience  shown  to  arise  from  the  jcjinder  of  different  counts  against 
different  offenders;  ih.,  see  Lord  Raym.  1248;  or,  if  the  objection  is  not  made  till 
after  the  jury  has  been  charged,  might  jiut  the  prosecutor  to  his  election  ;  see  p.  191  Dick- 
inson's Q.  S.  Objection  to  an  indictment  for  im[)roper  joinder  of  defendants  in  it,  is  too 
late  after  verdict ;  Reg.  v.  Hayes,  2  M.  &  Rob.  155. 

'J'o  support  coris|)iracy  it  is  necessary  that  two  or  more  defendants  should  be  charged  to 
have  liecMi  engaged;  R.  m.  Kinnersely,  1  Strange  193;  R.D.Sudbury,  12  Mod.  262;  13 
East  412 J  1  Ld.  Raym.  484;  Stale  w.  Allison,  3  Yerg.  4-J<S;  People  v.  Howell,  4  Johns. 
296;  Tuipitj  v.  State,  0  Bluckf.  72;  though  it  is  sutKcieiit  to  aver  the  otlence  to  have 
lieen  coiiimilted  by  one  defendant  |)articularly  named,  together  with  others  to  the  inquest 
tuiknown;  ajid  the  same  law  applies  to  riot,  with  the  exception  that  in  the  latter  offence 
three  or  more  defendants  nnist  be  joined;  see  Wharton's  C.  L.  110,  491,  527. 

If  two  or  more  Uv.  jointly  charged  with  having  committed  a  single  offence,  they  cannot 
he  separately  convictc  d  «f  separate  i)arts  of  it.  But  both  may  be  convicted,  or  one  only, 
nnd  the  otlicr  acqniltrd  of  the  whole  charge;  see  R.  v.  Hempstead,  R.  tt  R.  314;  also  R.  v. 
Biilterworth,  and  li.  v.  Messinghain,  1  Mood.  C.  V.  257.  In  R.  v.  Harris,  Balls  A:,  Moses, 
7  C  <.V  P.  41G,  three  w(.Te  jointly  indicted  at  the  central  criminal  court  for  feloniously 
using  ])lates  containing  impressions  of  forged  notes.  It  was  held  that  a  singly  using  the 
pbiles  by  each  of  the  three  while  alone,  would  not  sudire  ibr  a  conviction;  but  the  jury 
inuol  select  some  one  i)aUieul;ir  time  after  all  three  li.id  become  connected,  viz.  a  time 


PROPER  ADDITION  OF  ACCUSED  PARTY.  *  7 

when  tlicy  were  all  present  together  at  one  act,  or  assisting  in  such  one  act,  as  by  two  using 
and  one  watching  at  the  door  to  prevent  disturbance,  and  tlie  liiie. 

(f)  (Proper  addition  of  the  accused  party).  The  statute  1  Hen.  V,  c,  5,  enacts,  that  in 
all  indictments  on  which  process  of  outlawry  lies,  additions  shall  be  made  to  the  defend, 
ants'  names,  of  tiicir  estate  or  degree,  or  mystery,  and  of  the  towns  or  hamlets,  or  places, 
and  the  counties  of  the  which  they  were  or  are  conversant.  This  statute  has  been  either 
recognized  as  in  force  in  those  states  where  the  question  has  been  brought  up  independent 
of  local  legislation,  or  has  been  substantially  re-enacted;  Wharton's  C  L.  68;  State  v. 
Hughes,  2  Har.  &  M'H.  479;  Com.  v.  Sims,  2  Va.  Cases  374;  Com.  v.  Lewis,  I  Met. 
151 ;  State  v.  Bishop,  15  Maine  12i>. 

In  England,  if  an  accused  have  sevteral  titles,  he  must  be  described  by  the  most  honour- 
able; and  if  lie  have  none  by  birth,  office,  creation,  or  reputation,  and  is  described  by  any 
such,  or  if  a  gentlewoman  be  named  merely  spinster,  or  a  yeoman  is  named  gentleman,  the 
indictment  will  be  defective;  2  Inst.  Gi)9.  But  a  trader  may  be  sued  either  by  his  degree 
or  rank  in  society,  independent  of  his  trade,  or  by  the  name  of  his  vocation;  Erskine  v. 
Murray,  2  Ld.  Raym.  1542.  A  mis-description,  however,  calculated  to  throw  contempt 
on  the  defendant,  is  bad,  and  on  this  ground  an  indictment  was  held  vicious  in  abatement, 
which  described  the  defendant  as  a  lottery  vender,  when  he  was  in  fact  a  lottery  broker ; 
State  V.  Bishop,  15  Maine  122. 

By  Stat.  8  Hen.  VI.  c.  10,  s.  1,  2,  the  indictment  ought  to  contain  the  addition  of  the 
place  and  county  where  the  party  indicted  is  "conversant  and  dwelling."  The  county  in 
the  margin  refers  to  tlie  place  where  the  otFence  was  committed,  and  not  to  the  habitation 
of  the  party.  Accordingly  an  outlawry  for  perjury  was  reversed  on  error,  for  the  party 
was  indicted  by  the  name  "N.  L.,  late  of  the  parish  of  A.,"  without  showing  in  what 
county  A.  is,  though  "  Middlesex"  was  in  the  margin ;  Leecii's  case,  Cro.  Jac.  1G7. 

Neither  yeoman  or  labourer  are  good  additions  for  that  of  a  woman;  and  widow,  single- 
woman,  wife  of  A.  B.  and  spinster,  are  good  additions  of  the  estate  and  degree  of  a 
woman ;  but  burgess,  and  citizen,  and  servant,  are  all  of  them  too  general,  and  therefore 
not  good  additions  of  the  estate  or  degree  either  of  a  man  or  woman ;  Hawk.  b.  2,  c.  23, 
s.  Ill;  2  Inst.  66rf;  1  Bla.C.  405;  Ld.  Raym.  1179;  6  M.&S.38;  R. «.  Checketts,  6  M.  & 
S.  38.  As  to  yeomen,  see  1  Bla.  C.  406;  2  Inst.  595,  668.  Indictment  for  assault,  addition  was 
stated  as  gentleman.  Plea  that  he  was  an  esquire  and  no  gentleman,  overruled.  Per  Fortes- 
cue  J.,  "  this  is  in  addition  only,  not  in  the  name,  and  they  are  the  same,  and  every  esquire 
is  a  gentleman,  and  gentlemen  are  called  esquires;"  Reg.  v.  Chapman,  cited  by  Fortescue  J., 
in  Williams  v.  Francis,  Fort.  R.  354.  Wile  was  amended  to  widow,  in  a  case  where  the 
prisoner,  charged  with  murdering  her  husband,  was  described  as  H.,  the  wife  of  J.  O.,  late 
of,  &,c.,  labourer;  Reg.  v.  Orchard,  8  C.  &  P.  565,  Lord  Abinger;  see  Reg  v.  T.  and  M. 
Woodward,  8  C.  &  P.  561.  Prisoners  jointly  indicted  for  stealing  clothes,  M.  W.  being 
described  in  indictment  as  "  Margaret  Woodward,  sinslewoman,^''  and  she  pleaded  to  that 
indictment.  The  only  evidence  was  that  the  prisoners  addressed  each  other  as  husband  and 
wife,  and  passed  and  appeared  as  such,  and  were  spoken  of  as  such  by  witnesses  for  crown. 
Palteson  J.:  This  is  evidence  on  which  the  jury  must  say  whether  they  are  satisfied  that 
the  prisoners  are  in  fact  husband  and  wife,  even  though  the  woman  has  pleaded  to  indictment 
charging  her  as  "  singlevvoman."  She  ought  to  have  been  described  as  wife,  not  as  single- 
woman.  The  woman  was  acquitted :  the  man  convicted.  There  arc  few  cases  in  the 
American  books  where  the  niceties  of  the  English  law  of  additions  have  been  recognized. 
A  want  of  an  addition  in  tola  is  ground  for  a  motion  to  quash;  but  I  apprehend  that  the 
additions  "  yeoman,"  "  spinster,"  "  gentleman,"  "  labourer,"  may  be  relied  upon  universally 
in  their  proper  places  as  sufhcient.  In  Virginia,  it  is  true,  in  an  old  case,  tlie  difference 
between  "labourer"  and  "yeoman"  w^ts  held  material;  Com.  v.  Sims,  2  Va.  Cases  374; 
but  the  present  tendency  is  to  regard  the  existence  of  any  additions,  however  general,  as 
enough.  Perhaps  "  yeoman"  is  the  most  general  nnd  unexceptionable.  Where  a  slave 
is  charged  with  an  offence,  the  proper  addition  seems  to  be,  "  that  a  negro  slave,  the  pro- 
perty of  B."  &LC.;  State  v.  Cherry,  3  Murph.  7. 

{Several  defendants  with  same  additions).  If  several  defendants  have  the  same  addition, 
it  is  safest  to  repeat  the  addition  after  each  name,  applying  it  jiarlicularly  to  every  one  of 
them  ;  and  where  a  father  has  the  same  name  and  the  same  addition  with  a  defendant, 
being  his  son,  an  indictment  is  defective  unless  it  add  the  addition  of  the  younrrer  to  the 
other  additions;  but  where  the  father  is  a  defendant  without  his  son,  it  is  clear  that  there 
is  no  need  of  the  addition  o^  tlie  elder.  Where  L.  W.  Sr.  and  L.  W.  Jr.  lived  in  the  same 
town,  on  an  iiulietment  against  L.  W.  evidence  is  not  admissible  of  acls  done  by  L.  W. 
.)r.,  as  it  is  to  be  presumed  that  the  indictment  means  L.  W.  Sr. ;  State  r.  Vittum,  9  N. 
Hainp.  519;  Jackson,  ex  dem  ;  Pell  v.  Provost,  2  Caines  165;  but  see  ('om.  v.  Perkins, 
1  Pick.  388 ;  State  v.  Grant,  22  Maine  171  ;  Coit  v.  Starkweather,  8  Conn.  280  ;  see  postea. 

In  Indiana  it  seems  no  addition  is  necessary  ;  thus  in  State  v.  M'Djwcll,  6  Blackf.  49, 


8  NAME,  RESIDENCE  AND  ADDITION. 

Dewey  J.  said  :  "  The  objection  urged  against  tlie  indictment  is,  that  the  defendant  is  not 
described  by  the  addition  of  his  degree,  or  mystery,  and  place  of  residence.  By  the 
common  law  no  addition  was  required  in  indictments  against  persons  under  the  degree 
of  a  knight;  1  Chit.  C,  L.  204.  The  statute  of  additions,  1  Hen.  V.  c.  5,  enacts  that 
defendants  shall  be  desciibed  by  adding  to  their  names  their  estate,  degree,  or  mys- 
tery, and  place  of  residence,  in  all  cases  in  which  "  the  exigent  shall  be  awarded."  It  has 
been  held,  in  the  construction  of  this  statute,  that  in  prosecutions  which  cannot  be  attended 
by  the  process  of  outlawry,  the  indictment  need  not  give  the  addition  of  the  defendant ;  1 
Chit.  C.  L.  206;  Bacon  Abr.  Indictment  ii,;  ib.  Misnomer  2;  Rex  «.  Brough,  1  Wils.  244; 
Cro.  Eliz.  148.  The  exigent,  being  a  step  in  the  proceedings  of  outlawry,  is  unknown  to  our 
law.  It  is  therefore  evident  that  the  statute  of  additions,  from  its  own  terms,  is  not  applicable 
to  prosecutions  in  this  state;  and  it  is  equally  clear,  that  the  common  law  does  not  require 
the  defendant  to  be  described  by  his  addition. 

{Mystery  at  timt  of  Jinding),  The  additions  of  estate,  degree,  and  mystery  of  the 
defendant,  are  not  sufficient  unless  they  be  the  same  which  he  had  at  the  time  of  the  find- 
ing of  the  indictment;  and  in  this  respect  such  additions  differ  from  that  of  place,  which 
is  sufficiently  shown  by  naming  the  defendant  lole  of  such  a  place ;  and  such  additions 
must  be  expressed  in  such  manner  that  it  may  plainly  appear  to  refer  to  the  party;  and 
therefore  it  is  not  well  expressed  by  the  addition  of  his  mystery,  naming  him  son  of  A. 
of  B.,  butcher,  because  butcher  refers  to  it  rather  than  to  the  son ;  2  Inst.  670  ;  2  Hale  177. 

{Place  of  residence  of  defendant).  With  respect  to  residence,  it  is  a  good  addition  of 
this  kind  to  name  the  party  late  of  a  township  named  ;  see  Dickinson's  Q.  S.  p.  203;  R. 
V.  Yandell,  4  T.  R.  521  ;  in  which  respect  this  addition  differs  from  that  of  the  estate^ 
degree,  or  mystery;  and  it  is  said  that  if  the  defendant  be  named  commorant  in  A. 
late  of  B.  it  is  sufficient;  Coitizos  v.  Munoz,  Stra.  924.  As  will  be  seen  in  the  forms 
liereafler  given,  the  residence  in  most  of  the  states  is  held  to  be  satisfied  by  the  allegation 
"late  of  the  county  aforesaid,"  or  "late  of  county;"  see  also  VVh.  C.  L.  70.     In 

England  greater  exactness  is  required ;  and  where  in  an  indictment  for  an  assault,  defend- 
ant  was  described  as  late  of  A.  in  the  county  of  B.,  without  stating  that  A.  was  a  parish, 
it  was  holdcn  bad;  although  the  ofiencc  was  laid  to  have  been  committed  at  the  parish 
aforesaid;  for  some  certain  venue  must  appear  on  the  face  of  the  record,  and  here  the 
offence  is  laid  at  the  parish  aforesaid,  and  no  parish  is  mentioned ;  R.  v.  Mathews,  2  Leach 
664 ;  5  T.  R.  162.    In  tiie  city  of  New  York  the  practice  is  to  charge  "  late  of  ward 

in  the  city  of  New  York." 

Willi  respect  to  addition  of  place,  the  best  and  most  convenient  course  is  to  state  that 
in  which  the  ])risnner  conmiittcd  the  offence;  for  he  is  considered  as  conversant  of  that 
place,  and  by  this  means  the  confusion  of  stating  two  places  in  the  indictment  is  void ; 
Hawk.  b.  2,  c.  27,  s.  12.5,  126. 

{Haw  error  in  name  or  addition  operates).  The  only  mode  by  which  at  any  time  ad- 
vantiige  can  be  taken  by  a  prisoner  of  any  error  in  his  name  or  addition,  is  by  plea  in 
abatement;  State  r.  Lorcy,  2  Brevard  3!i«') ;  Lynes  t.  State,  5  Port  2!J6 ;  Stater.  Hughes, 
2  Har.  &  M'H.  479;  sec  Slate  ».  Newman,  2  Car.  Law  Rep.  74;  Com.  v.  Dedham,  16 
Mass.  146;  Turns  v.  Com.,  6  Met.  225  ;*Com.  v.  Sayers,  8  Leigh  722;  R.  v.  Granger,  3 
Burr.  1617;  though  where  no  addition  is  given,  or  where  there  is  no  christian  name,  the 
jiropcr  course  is  to  move  to  quash.  If  lie  once  pleads  the  general  issue  not  guilty,  he  can- 
not afterwards  take  advantage  of  any  such  error,  for  he  is  precluded  and  estopped  by  his 
plea;  and  lie  is  not  obliged  to  take  advantage  of  an  error  in  these  respects  by  pleading  in 
abatement,  in  order  to  make  his  acquittal  a  valid  bar  to  any  subsequent  prosecution  for 
the  same  offence;  for  if  he  be  afterwards  indicted  for  the  same  offence  by  another  name 
or  addition,  he  may  siiow  himself  to  be  the  same  person  by  averment  and  evidence,  and 
rely  with  success  on  his  previous  acquittal,  notwithstanding  the  variance;  Hawk.'b.  2,  c. 
2."i,  s.  103,  104.  A  ))lea  in  abatement  must  be  verified  by  affidavit  exposing  the  defendant's 
real  name,  additions,  or  mystery,  as  the  case  may  be;  Com.  t).  Sayers,  H  I,cii;h  72 J;  R.  v. 
Granger,  3  Burr.  161)7  ;  Rev.  Stat.  Mass.  c.  136,  s.  31.  An  error  as  to  one  |>arty  of  several 
can  only  be  taken  advantage  of,  in  any  stage,  by  him,  and  does  not  affet  the  indictment 
as  to  tlie  others;  2  Hale  177.  A  ])lea  in  abatement  was  always  of  small  benefit  to  tlu- 
party  accu.sed,  because  he  was  bound  to  set  out  his  true  name  and  addition  in  it;  and,  if 
Buccessfnl,  might  be  indicted  for  the  same  felony;  while  if  unsuccessful,  in  the  English 
practice,  sentence  folirnved  in  misdemeanor ;  1  Chit.  C.  L.  461  ;  though  here  the  inclination 
of  authority,  ju(l<;iiig  from  ttie  doctrines  arising  in  demurrei',  is  that  tln^  judgment  would 
be  respondeat  ouster;  Wh.  C.  L.  133-4;  State  v.  Wilkitis,  17  Verm.  152;  Ross  v.  State, 
fi  Miss.  696. 

(/)  Though  pome  precise  day,  month,  and  year  must  be  charged;  Stite  ».  Brckwith,  1 
Sfew.  31H;  Wh.  C.  L.  72;  !>'.  v.  Taylor,  3  15.  k,  i',.  Mi;  it  is  not  necessary  to  sustain  the 
precise  allegation  in  proof,  if  the  time  stated  be  previous  to  the  finding  the  indiclmenl  ; 
bliirkie  C.  I'.  5b;  Shelton  c.  Slat( ,  1  Stew.  «!«-  Toil.  20«;  but  it  is  maleiial  to  siiow  that 


TIME,  VI  ET  ARMIS.  9 

the  prosecution  was  commenced  in  due  time,  wliere  it  is  enacted  that  it  shall  be  com- 
menced within  a  particular  time;  see  Saik.  369,  378;  Caith.  501;  5  Mod.  44G ;  1  Ld, 
Kaym.  582;  10  Mod.  2-48;  and  where  tiie  offence  is  statutory,  the  time  laid  must  be  sub- 
sequent to  the  pass;iire  of  the  statute  by  which  the  offence  was  created.  It  is  not,  how- 
ever, necessary  to  allege  time  to  any  charjje  of  mere  negation  or  omission;  R.  v.  Holland, 
5  T.  R.  GIG  ;  Starkie's  C.  P.  61.  If  the  offence  is  laid  on  an  uncertain  or  impossible  day, 
or  on  a  future  day,  or  on  different  days,  or  on  such  a  day  as  renders  the  indictment  repug- 
nant to  itself,  the  objection  is  fatal  in  arrest  of  judgment  even  after  verdict.  Thus  judg- 
ments were  arrested  when  the  date  charged  was  November,  1801,  and  the  25th  year  of 
American  Independence,  the  dates  being  inconsistent;  State  v.  Iltaidricks,  Conf.  N.  C 
R.  369;  where  on  a  charge  of  compounding  felony,  the  date  of  the  commission  of  the 
offence  was  laid  anterior  to  the  date  fixed  for  the  commission  of  the  larceny;  State  v, 
Dandy,  1  Brevard  395 ;  and  where  the  crime  was  alleged  to  have  been  committed  on  Sep- 
tember 30,  1033;  Serpentine  v.  State,  1  How.  Miss.  R.  260.  So  if  llie  date  be  left  blank; 
Slate  V.  Beckwith,  1  Stewart  318;  State  v.  Roach,  2  Hay.  552;  Tam  v.  State,  3  Miss. 
43.  Where,  however,  an  indictment  tried  in  the  ^first  year  of  George  IV.,  stated  tlie 
offence  as  having  been  committed  "on  the  20th  July,  in  the  fourth  year  of  the  reign  of 
king  George  the  Fourth,"  it  was  holden  that  the  words  '■'■fourth  -year  of  the"  might  be 
rejected  as  superfluous,  and  the  indictment  sustained;  R.  u.  Gill,  R.  &  R.  431  ;  see  R. 
V.  Scott,  R.  &  R.  414;  1  Russ.  C.  M.  562,  S.  C.  Thus,  where  it  was  made  a  statutory 
misdemeanor  to  exhibit  lights  to  persons  at  sea  "  between  September  and  April,"  an  alle- 
gation that  the  defendant  exhibited  lights  on  the  9th  March  was  held  sutficient  without 
specifically  averring  that  he  did  so  '■'■between  September  and  April;"  6  Geo.  IV.  c.  164,  s. 
52;  R.  V.  Brown,  M.  &-  M.  163;  per  Liltledale  and  Gaselee,  Js. ;  see  note  to  Harding  v. 
Stokes,  Tyr.  &  (Jr.  599.  It  seems  that  where  an  offence  is  laid  contrary  to  the  foiin  of  a 
statute,  it  is  not  necessary  to  state  it  to  liave  been  committed  "after  the  passing  of  the 
act,"  though  it  took  place  very  recently  before,  if  the  time  when  it  took  place  is  laid  and 
proved  to  be  after  the  act  passed;  see  judgment  of  Parke  B.,  in  Harding  v.  Stokes,  Tyr. 
<St  Gr.  605.  If,  in  jjoint  of  fact,  an  offence  is  committed  after  a  day  fixed  by  a  statute,  as 
that  on  and  after  wJiich  an  offence  may  be  laid  and  tried  as  if  committed  in  the  courity 
in  which  the  ofiVnder  is  apprehended,  and  the  statute  does  not  vary  the  nature  and  cha- 
racter of  the  offence,  the  having  laid  the  day  in  the  indictment  before  the  day  fixed  by  the 
statute,  will  not  vitiate ;  R.  v.  'I'reharme,  1  Mood.  C.  C.  298.  Clerical  errors,  however,  in 
setting  forth  the  date,  are  liberally  treated.  Thus,  "first  March"  was  held  sufficient  for 
"  first  of  March  ;"  Simmons  v.  Com.,  1  Rawle  142  ;  and  where  the  caption  was  "  December 
Sessions,  1818,"  the  date  was  held  sufficiently  well  expressed  by  the  averment  "in  the  year 
aforesaid;"  Jacob  v.  Com-,  5  S.  &  R.  315.  The  setting  forth  the  date  in  Arabic  figures 
is  enough;   State  v.  Gilbert,  13  Verm.  647;    State  v.  Smith,  Peck  165;   State  v.  Hodgdon, 

3  Verm.  481.  The  word  '■'■being''''  (existens)  will,  unless  necessarily  connected  with  some 
other  matter  (e.  g.  by  the  word  then),  relate  to  the  time  of  the  indictment  rather  than  of 
the  offence;  see  1  Chit.  C.  L.  2d  ed.  220,  and  Reg.  v.  Silversides,  3  Q.  B.  R.  405  ;  Wh.  C. 
L.  75. 

(Hour  of  committing  offence).  It  is  not  necessary  to  state  the  hour  of  committing  the 
offence,  except  where  its  indictable  nature  or  character  is  made  by  statute  to  depend  on 
the  hour  of  its  being  committed.  Thus,  as  burglary  cannot  be  committed  in  twilight,  it 
is  necessary  in  case  of  that  offence  to  allege  a  certain  hour  in  the  night  at  which  it  was 
committed,  in  order  that  the  fact  might  appear  on  the  face  of  the  indictment  to  have  been 
done  after  the  twilight  of  the  evening,  and  before  that  of  tlie  morning;  R.  v.  Waddington, 
2  East  P.  C.  513;  1  Hale  549;  2  Hawk.  c.  25,  s,  76,  77;  State  v.  G.  S.,  1  Tyler  295; 
Thonipson  t5.  Com.,  4  Leigh  652;  State  v.  Mather,  Chip.  32.  It  is  not  enough  to  lay 
this  offence  as  having  been  committed  between  the  hour  of  twelve  at  night  and  nine  tho 
next  morning;  State  v.  Mather,  Chip.  32. 

ig)  {Vi  et  armis).  Whatever  may  once  have  been  thought  of  the  magic  of  these  words, 
it  is  now  settled  that  they  are  wholly  unessential.  The  statute  37  Hen.  VIII.  c.  8,  clearly 
dispenses  with  them,  even  if  before  that  they  possessed  any  signification  or  importance; 
and  the  current  of  authority,  even  in  those  states  where  that  statute  is  not  in  force,  is  to 
reject  them  altogether ;  2  Hawk.  c.  25,  s.  90 ;  3  P.  Wms.  497;  Wh.  C.  L.  102;  State  «. 
Kean,  10  N,  Hamp.  347;  State  v.  Munger,  15  Verm.  290;  2  Tyler  266;  Tipton  v.  State, 
2  Ycig.  542;  Territory  ».  M'Farlane,  IMart.  224;  Slate  v.  Thomson,  2  Rice's  Dig.  386, 
In  Com.  V.  Martin,  reported  2  Barr  244,  the  exception  taken  to  the  indictment,  which  was 
lor  assault  and  battery,  was  the  want  of  tliosc  words,  and  though  it  does  not  distinctly 
appear  so  on  the  face  of  the  report,  the  intimation  of  the  court  is  clear  that  they  are  wholly 
unnecessary. 

(h)  In  this  country  the  usual  practice  in  averring  place  is  by  charging  the  offence  to 
have  taken  place  in  the  county  where  it  was  committed;  Wh.  C.  L.  77;  Duncan  v  Com., 

4  S.  &  R.  448.     In  Massachusetts,  however,  it  has  been  licld,  that  if  from  tijc  terms  of 


lO  DESCRIPTION  OF  PARTY  INJURED. 

the  location  of  a  town  or  district  by  the  act  of  incorporation,  the  court  cannot  conclude 
that  the  whole  town,  district,  or  unincorporated  place  lies  in  the  same  county,  both  towa 
and  county  must  be  averred  ;  Com.  v.  Springfield,  7  Mass.  9  ;  and  in  the  same  case  it  was 
declared,  that  the  proper  course  in  that  state  in  all  capital  cases,  is  to  lay  both  county  and 
town.  In  the  city  of  New  York  the  practice  is  to  name  the  ward,  in  the  city  of  New  Or- 
leans the  parish. 

{Repf-ating  lime  and  place  to  etery  material  fact).  When  time  and  place  have  been 
once  named  with  precision,  t!)e  words  "  then  and  there,'''  referring  to  the  last  antecedent, 
will  afterwards  sufficiently  express  both;  Wh.  C.  L.  74;  Stout  v.  Com.,  11  S.  »fc  R.  177. 
Where  the  circumstances  stated  in  indictments  for  misdemeanors  are  merely  continuous, 
as  in  assaults  with  aggravation,  one  mention  of  time  and  [)lace  as  applicable  to  all  circum- 
stances, will  suffice;  but  this  is  otherwise  in  felonies  wlicre  distinct  and  independent  cir- 
cumstances  are  necessary  to  the  charge;  2  Hale  178;  R.  v.  Cotton,  Cr.  El.  738.  But  the 
mere  qualification  "and"  without  the  word  "then"  is  insufficient  to  extend  the  original 
allegation  of  time  to  the  averment  thus  introduced;  Wh.  C.  L.  74.  Where  the  time  and 
place  are  immaterial,  they  may  be  introduced  by  the  words  to  loit;  though  without  a  sci- 
licet in  such  case,  a  variance  would  not  prejudice;  and  as  in  cases  where  they  are  of  tho 
essence  of  the  charge,  a  scilicet  will  not  aid  a  variance  in  proof;  Busby  ».  Watson,  Bla. 
Rep.  1050;  it  is  rarely  ever  useful;  Dickinson's  Q.  S.  6th  ed.  212. 

(t)  {The  description  of  the  party  against  whose  person  or  property  the  offence  was  com- 
mitted). The  indictnieat  must  be  so  certain  as  to  the  party  against  whom  the  offence 
was  committed,  as  to  enable  the  prisoner  to  know  and  understand  who  that  party  is, 
and  what  charge  he  is  called  on  to  answer;  2  Curw.  Hawk.  319.  And  an  error  in  set- 
ting forth  the  names  of  such  party,  is  much  more  serious  than  in  setting  forth  the  name 
of  the  defendant  himself,  as  the  latter  can  only  be  taken  advantage  of  by  abatement,  but 
the  former  is  proper  ground  for  acquittal,  in  case  of  variance  in  evidence,  or  arrest  of  judg- 
ment  in  case  of  variance  on  record  ;  Wh.  C.  L.  71.  The  mis-spelling  of  a  surname,  when 
its  usual  pronunciation  is  satisfied  by  the  manner  in  which  it  is  written  in  the  record,  as 
"  Whyneard"  for  "  Winyard,"  is  sufficient;  R.  v.  Foster,  R.  &.  R.  412;  and  in  one 
case  the  court  went  so  far  as  to  say  that  "  Harrison"  was  not  a  fatal  variance  from  "  Har- 
ris;"  State  V.  Fiance,  1  Overton's  R.  434;  though  in  Pennsylvania,  in  Com.  v.  Gillespie,  7 
S.  &  R.  469,  the  extretne  position  was  taken  that  "Bui rail"  was  sufficient  to  arrest 
judgment  where  the  proof  was  that  the  name  was  Burril.  The  word,  however,  it  must  be 
observed,  occurred  in  the  copy  of  a  lottery  ticket,  pretended  to  be  set  out  in  the  indict- 
ment. A  mere  statement,  it  seems,  of  tiie  christian  name,  without  any  surname,  will  not 
suffice;  Hawk.  b.  2,  c.  25,  s.  71.  Where  the  name  and  addition  of  the  injured  party  can- 
not be  ascertained,  as  where  a  body  of  a  murdered  i)erson  is  found  who  cannot  be  identi- 
fied, or  goods  are  found  on  a  highwayman,  &c.,  the  indictment  may  allege  the  party  to  be 
"to  the  jurors  unknown ;"  2  Hale  181  ;  see  2  B.  <fc  Aid.  580.  To  support  the  description 
of"  unknown,"  remarks  Mr.  Serjeant  Talfourd,  it  must  appear  that  the  name  could  not  well 
have  been  supposed  to  have  been  known  to  the  grand  jury  ;  Reg.  v.  Stroud,  C  &.  K.  187. 
"Unknown"  was  held  sufficient  where  there  was  evidence  that  the  party  injured,  a  bas- 
tard child  who  died  at  twelve  days  old  unbaptizcd,  had  been  called  by  its  mother  Mary  Ann  ; 
R.  V.  Smith,  1  Mood.  C.  C.  295;  S.  C,  G  C.  &  P.  151.  A  bastard  which  had  never  ac- 
quired a  name,  is  sufficiently  identified  by  siiowing  the  name  of  its  parent  tluis — "a  certain 
illegitimate  male  child  then  lately  born  of  tlie  body  of  A.  B.  (tiie  mother);"  Reg.  v.  Mary 
and  Jane  Hog<r,  2  M.  &  ilab.  3S0 ;  see  Reg.  v.  Hieks,  2  ib.  302;  where  an  indictment  for 
child-murder  was  held  bad  i'or  not  stating  the  name  of  the  child  or  accounting  for  its  omis- 
sion. A  bastard  must  not  be  described  by  his  mother's  name  til!  he  has  acquired  it  by 
reputation;  R.  v.  Clark,  R.  «&  R.  358;  Wakefield  v.  Mackey,  1  Phill.  R.  133,  contra. 
A  bastaid  child,  six  weeks  old,  who  was  baptized  on  a  Sunday,  and  down  to  the  following 
Tuesday  had  been  called  by  its  name  of  baptizm  and  mother's  surname,  w.is  held  by  Ers- 
kine  .1.  to  be  properly  describid  by  both  those  names  in  an  indictment  for  its  murder; 
Reg.  13.  Crans,  8  C.  iSL  P.  705;  but  where  a  basl;:rd  was  baptized  "Eliza,"  without  men- 
tioning any  surname  at  tiie  ceremony,  and  was  iiftcrwiirds,  at  three  years  old,  sutfocatcd 
by  the  prisoner,  an  indictment,  styling  it  "  J'^liza  Waters,"  that  being  the  mother's  sur- 
name, was  held  bad  by  all  tlie  judges,  as  the  deceased  had  not  acquired  the  name  of  Wat- 
ers by  reputation;  R.  ».  Elhm  Waters,  1  Mood.  C.  C.  457.  (N.  B.  No  baptizmal  register 
or  copy  of  it  was  |)rodiiced  at  either  trial.  Scnih. :  "  Eliza"  would  have  sufficed  ;  see  livf^. 
V.  Stroud,  C.  &,  K.  1H7,  and  cases  collected;  Williams  r.  Bryant,  5  M.  &,  W.  447).  In 
the  previous  case  of  I{.  n.  P'rances  Clark,  J{.  &  R.  35-',  an  indictment  staled  the  murder 
of^frforge  ],(ili)'man  (Jlurk,  a  base-born  infant  mali;  child,  aged  three  weeks,"  by  liie  pri- 
fioner,  its  mother.  'i"he  eliild  had  been  eliristcncd  (ieorge  Lnkeman,  being  the  nanie  of 
its  re|)ufed  father,  and  was  called  so,  and  not  by  any  other  name  known  to  the  witnesses. 
ItB  motlier  called  it  so.  'J'hcre  was  no  evidence  that  it  had  been  called  by  or  obtained  its 
mother's  name  oi'  Clark.     The  court  held  him  improperly  laid  Clark,  and  as  nothing  but 


ALLEGATION  OF  INTENT.  1 1 

the  name  identified  him  in  it,  the  conviction  was  held  bad;  see  also  R.  v.  Sheen,  2  C.  & 
P.  634,  However,  in  Reg.  v.  Biss,  8  C.  &,  P.  773,  an  indictment  against  a  married  woman 
for  murder  of  a  legitimate  child,  which  stated  "that  she,  in  and  upon  a  certain  infant  male 
child  of  lender  years,  to  wit,  of  (he  age  of  six  weeks,  and  not  baptized,  feloniously  and  wil- 
fully,  &-C.,  did  make  an  assault,  &,c.,"  Wtis  held  insufficient  by  all  the  judges,  as  it  neither 
elated  the  child's  name,  nor  that  it  was  "to  the  jurors  unknown."  Semhle :  it  would  have 
sufficed  to  state  him  as  "a  certain  male  child,  Aic.,  of  tender  age,  that  is  to  say,  about  the 
age  of  six  weeks,  and  not  baptized,  born  of  the  body  of  C  B. ;"  see  2  C.  &.  P.  635,  n. ;  see 
also  R.  V.  Sheen,  2  C.  fc  P.  634.  Where  a  party  is  as  usually  known  by  one  name  as  an- 
other, he  may  be  described  by  either,  and  by  the  name  which  he  has  assumed,  even  though 
Bhown  not  to  be  his  right  name;  R.  v.  Norton,  R.  &,  R.  509;  R.  v.  Berriman,  5  C.  &. 
P.  60]  ;  Anon.,  6  C.  &•  P.  40'S.  So  where  an  indictment  charged  the  name  of  the  person 
slain  as  Marie  Gardiner  alias  Maria  Bull,  and  the  proof  showed  her  real  name  to  be  Maria 
Frances  Bull,  though  she  was  generally  known  by  the  name  in  the  indictment,  it  was 
held  sufficient;  State  v,  Gardiner,  Wright's  R.  392.  If  a  false  description  be  added  to  the 
name,  as  if  a  female  feloniously  mairied  by  a  man  whose  wife  is  still  alive,  be  described  a 
"  widow,"  when  she  is  known  to  be  a  singlewoman,  the  error  will  be  fatal,  though  no  descrip- 
tion of  her  was  requisite  ;  R.  V.  Deeley,  1  Mood.  C.  C.  R.  303;4C.  &  P.  579  (A.D.I  831). 
Where  the  party  injured  has  a  mother  or  father  of  the  same  name,  it  is  better  to  style  the 
prosecutor  "the  younger,"  as  it  may  be  presumed  that  the  parent  is  the  party  meant;  for 
George  Johnson  means  G.  J.  the  elder,  unless  the  contrary  is  expressed  ;  Singleton  v. 
Johnson,  9  M.  &,  W.  67.  But  this  was  held  immaterial,  where  it  is  sufficiently  proved 
who  Elizabeth  Edwards,  the  party  described  assaulted,  was,  viz.  the  daughter  of  another 
Elizabeth  Edsvards;  R.  v.  Peace,  3  B.  tSc  Aid.  519;  see  ante,  p.  7.  A  variance  in  the 
name  or  identity  of  the  party  laid  as  injured,  will  entitle  the  prisoner  to  acquittal ;  Dickin- 
son's Q.  S.  6th  ed.  213.  See  also  generally  on  this  head,  2  Hale's  Pleas  of  the  Crown,  p. 
239,  ed.  by  Stokes  and  Ingersoll,  n.  I,  to  which  work  the  practitioner  is  referred  as  being 
at  the  same  time  the  most  satisfactory  edition  of  Hale  extant,  and  as  containing  a  series 
of  notes  of  singular  learning  and  accuracy. 

{j)  {Allegation  of  intent).  What  the  law  forbids  to  be  done,  it  becomes  illegal  to  do 
wilfully;  Fergus  v.  State,  6  Yerg.  345;  Wh.  C.  L.  168;  on  which  account  the  doing  it 
will  be  the  subject  matter  of  an  indictment  as  contempt  of  the  statute;  Crowther's  case, 
Cro.  El.  655;  without  the  addition  of  any  corrupt  motives;  per  Ashurst  J.,  R.  v.  Sains- 
bury,  4  T.  R.  451,  cited  2  A.  &-  E.  612;  for  disobedience  of  an  acJ.  of  the  legislature,  is 
indictable  on  the  principles  of  the  common  law,  though  a  pecuniary  penalty  may  also  be 
provided  for  it;  R.  r.  Jones,  Strange  1146;  indictment  for  not  taking  on  defendant  the 
office  of  overseer  on  a  regular  appointment;  R.  v.  Harris,  R.  v.  Crorsley,  10  A.  Sc  E.  132. 
But  the  intention  of  the  party  at  the  time  he  commits  an  act  charged  as  an  offence,  is 
ollen  as  necessar}'  to  be  proved  as  any  other  fact  laid,  though  it  can  only  be  proved  by 
overt  acts,  every  man  being  supposed  to  intend  the  necessary  consequence  of  his  own 
nets;  R.  v.  Harrington,  R.  &  R.  207.  When  more  than  one  criminal  intent  is  averred, 
the  averment  is  divisible,  and  only  one  need  to  be  proved ;  e.  o^.  if  a  person  is  charged 
with  assaulting  a  child  with  intciit  to  abuse  and  carnally  know  her,  he  may  be  convicted 
of  an  assault  with  an  intent  to  abuse  her  only;  R.  v.  Dawson,  2  Slnrk.  62;  Shavv's  case, 
2  R.  789;  Figgins  c.  Cogswell,  3  M.  &,  S.  36,).  As  to  intent  in  ut'ering  a  counterfeit 
half-crown  in  charity,  see  Page's  case  (on  2  W.  IV.  c.  34,  s.  7),  8  C.  &,  P.  22;  and 
-Alldy's  case  for  erasing  and  altering  a  stamped  post-horse  license,  both  before  Ld.  Abin- 
ger  C.  B.,  8C.  &  P.  136. 

In  R.v.  Hunt  and  another,  2  Camp.  583,  an  information  charged  tliat  defendant  "com- 
posed, printed  and  published''''  a  libel.  The  proof  was  of  ])ul)iicMtion  only;  Ld  Ellen- 
borough  held  it  sutiicient  for  a  conviction,  adding,  "  If  an  indielment  charges  that  the 
delendant  'did  and  caused  to  be  done'  a  particular  act,  it  is  enou^rb  '"  prove  eithor.  The 
distinction  runs  through  the  whole  criminal  law;  and  it  is  invariably  enough  to  prove  so 
much  of  the  indictment  as  shows  that  the  defendant  has  eommitud  a  substantive  crime 
therein  specified. "^-Defendants  convicted. 

In  R.  V.  Williams,  2  Camp.  646,  defendant  was  charged  with  "composing,  printing 
and  publishing"  a  libel.  His  MSS.  was  produced  and  shown  to  have  been  delivered  by 
him  to  a  printer,  who  |)rinted  and  sold  copies  by  his  orders.  These  cojiies  diffi'red  from 
the  indictment,  and  from  the  MSS.  which  was  adhered  to  in  it.  Lawrence  J.,  "  defend- 
ant may  be  acquitted  of '  printing,'  and  found  guilty  of  '  composing  and  publishing.'" — 
Defendant  convicted.     See  also  3  M.  &,  S.  371  ;  2  Bla.  R.  7sy. 

(A-)  {Conclusion  of  indictments  at  common  law).  The  old  reason  of  the  ordinary  con- 
clusion of  an  indictment  at  common  law,  '■'■against  the  peace  of  our  said  lady  the  queen, 
her  crown  and  dignity,"  was  that  these  words  were  always  necessary  in  order  to  show  to 
whom  the  forfeiture  accrued.  Whether  in  misdemeanor,  R.  «.  Taylor,  3  B.  &.  C.  502  ; 
common   law  felony,   R.  v.  Cook,  R.  &  R.  C.  C.  176;   2  Russ.  C.  &,   .M.   172;  or   felony 


l2  CONCLUSION  OF  INDICTMENTS. 

created  by  statute,  ib.;  1  Bla.  C.  116.  The  only  exceplion  was  in  an  indictment  for  a 
mere  nontbas'ance  at  common  law,  when  it  is  said  their  omission  would  not  preju- 
dice;  per  Holi  C.  J.;  Forlescue,  131  R. ;  and  they  are  always  necessary  in  an  ort'cnce 
against  a  statute.  In  this  country,  though  the  reason  no  longer  worlds,  tiie  form  is  pre- 
served, and  is  in  many  instances  made  imperative  by  constitutional  enactment,  as  will  be 
seen  in  the  next  chapter.  In  offences  of  all  characters,  the  "contra  pacem''^  is  essential; 
nnd  the  point  on  which  any  discretion  may  be  exercised  is  in  the  omission  or  introduction 
of  the  conclusion,  "■  contra  for  mam  statuti."  And  here  it  may  be  observed  that  in  all  cases 
of  doubt,  it  is  proper  to  introduce  this  conclusion,  and  even  in  a  clear  common  law  case,  it 
may  always  be  disregarded  as  surplusage;  Ld.  Raym.  149,  11G4;  R.  v.  Matthews,  5  T.  R, 
16-2,  4  ib.  ''■20'2;  1  Saund.  135, n.  3;  State  v.  Buckman,  8  N.  Hamp.  203;  Knowles  v.  State, 
3  Day  103;  State  v.  Cruiser,  3  Harris.  108;  Southworth  v.  State,  9  Conn.  560;  Com.  v, 
Gregory,  2  Dana  417;  Com.  v.  Hoxey,  16  Mass.  385;  Resp.  v.  Newell,  3  Yeates  407; 
Pa.  c.  Bell,  Add.  171  ;  2  Hale  190;  AUeyn  43;  1  Salk.  212-13;  5  T.  R.  162;  2  Leach 
5.S4;  2  Salk.  460;  1  Ld.  Raym.  1163;  4  T.  R.  202;  Hawk.  b.  2,  c.  25,  s,  115;  Bac. 
Ab.  Indictment  H.  2;  Burns' Just.  Indictment  ix. ;  HasJip  v.  State,  4  Hay.  273.  In 
a  large  class  of  offences,  however,  its  introduction  is  imperative.  Thus,  where  an 
offence  is  created,  or  where  a  misdemeanor  is  raised  into  a  felony  by  statute,  the 
words  "contrary  to  the  form  of  the  statute  in  such  case  made  and  provided,"  rnusl  be 
inserted  either  before  or  at'ter  the  words  "against  the  peace,"  &,c ;  2  Hale  192;  2  Hawk. 
c.  25,  s.  116;  1  Salk.  370;  2  R.  &R.38;  Wh.C.  L.  104.  Where  the  matter  charged  is  no 
offence  at  common  law,  tiie  omission  of  these  words  will  so  entirely  vitiate,  tliat  no  judg- 
ment can  be  given  on  it;  1  Hale  172,  189,  192.  For  every  offence  for  which  a  party  is 
indicted  is  supposed  to  be  prosecuted  as  an  offence  at  common  law,  unless  the  prosecutor, 
by  reference  to  a  statute,  shows  that  he  means  to  proceed  on  it;  and  witliout  such  express 
reference,  if  it  be  no  offence  at  common  law,  the  court  will  not  look  to  see  if  it  be  an  of- 
fence by  statute;  per  Lawrence  J.  in  Lee  v.  Clark,  2  East  333;  Doct.  Plac.  332;  2  Hawk, 
c.  25,  s.  116;  R.  v.  Deacon,  R.  &  M.  N.  P.  C.  27.  But  where  the  matter  charged  was 
an  offence  at  common  law,  and  is  afterwards  prohibited  by  statute  without  being  altered 
in  degree,  as  from  misdemeanor  to  felony,  though  the  statute  provides  some;  new  corporal 
or  other  punishment,  e.g.  for  perjury  by  5  El.  e.  ix.,  or  for  larceny  by  7  &  8  C.  IV.  c.  28, 
s.  11;  Reg.  V.  Blea,  8  C.  «Sl  P.  735;  the  omission  of  coiUra  formam  sfatuti  will  not 
wholly  avoid  tne  indictment,  but  judgment  may  pass  for  the  punishment  inflicted  in  such 
case  by  the  common  law;  2  Hale  190,  192;  1  (Uiit.  C.  L.  290,  1st  ed. ;  Arch.  C.  P.  Ac 
Ev,  8th  ed.  55;  People  v.  Enoch,  13  Wend.  175;  State  v.  Riuley,  2  Brevard  382;  State  v. 
Tim,  3  Murph.  3;  State  ».  Crans,  7  Gill  &  J.  290 ;  Warner" «.  Com.,  1  Barr  154;  a  for- 
liori  if  the  statute  does  not  alter  the  offence,  though  it  defines  limits  within  which  alone  it 
can  be  committed,  or  prohibits  it,  and  the  punishment  is  only  reduced;  Reg.  v.  Polly  and 
another,  C.&  K.  77  ;  Reg.  v,  Andrews,  ib.  So  it  seems,  that  under  the  provisions  of  the  New 
York  Revised  Statutes,  a  common  law  indictment  for  murder  is  proper  ;  but  a  defendant  can- 
not bo  convicted  on  such  an  indictment  of  a  felonious  jiotnicidc,  with  malice  aforethought, 
unless  the  evidence  is  such  as  to  bring  the  case  within  the  statutory  definition  of  murder; 
People  V.  Enoch,  13  Wend.  159.  In  Pennsylvania,  the  statutory  penalty  can  be  inflicted 
after  conviction  on  an  indictment  for  murder  at  common  law  ;  Com.  v.  W'hilc,  6  Binn.  183. 

Numerous  distinctions  have  been  taken  in  the  old  books  as  to  the  proper  conclusion 
where  there  were  more  statutes  than  one  referring  to  the  offence,  whether  it  sJiould  be 
contrary  to  the  form  of  the  statute  or  statutes;  and  the  English  doctrine  used  to  be  that 
if  one  statute  be  relative  to  anoth(;r,  as  where  the  former  makes  the  offence  and  the  latter 
adds  a  penalty,  the  indictment  should  conclude  contra  formam  slalutorum ;  Westwood's 
case,  2  Hale  173.  The  more  recent  authorities,  however,  seem  to  eouMlcnance  the  opinion 
that  iti  all  cases  a  corichision  in  tiie  singular  will  sulliee;  Clanricardo  (Karl)  v.  Stokes,  7 
East  '"'■JO,  and  cases  eiled  1  Chit.  C.  L.  292,  n.  If  one  statute  subjects  an  offence  to  a  pecu- 
niary penalty,  and  a  subsequent  statute  makes  it  a  felony,  an  indictment  for  the  felony 
concluding  against  the  form  of  the  statute  in  the  singular,  is  right;  R.  7>.  Pirn,  R.  &.  R. 
42.'i;  tiiough  in  Maryland,  State  v.  Cassell,  2  II.  &  (.i.  470,  and  in  N.  Carolina,  State  v. 
Pool,  2  Dev.  202,  the  old  rule  is  adhered  to. 

Besides  these  necessary  parts  of  the  conclusion,  it  was  formerly  usual  to  introduce 
others  of  mere  moral  infcirence,  as  "to  the  great  displeasure  of  Almighty  God,"  "to  the 
evil  exami)lc  of  all  others,"  and  "to  the  great  damage"  of  the  party  directly  aggrieved; 
but  thcBC  arc  all  clearly  unnecessary,  and  should  be  omitted.  Dickinson's  Q.  S.  6th  ed, 
2J5. 

(/)  (Of  the  joinder  of  offences  in  an  indictment).  In  point  of  law,  several  offences, 
whicii  may  be  tiicd  by  the  same  rules,  and  which  have  the  same  legal  class  and 
character,  t.  e.  several  felonies,  or  several  misdemeanors,  may  be  charged  in  several 
counts  in  one  indictment;  2  Hale  173;  1  Chit.  C.  L.  1st  ed.  254;  State  ti.  I'lielps, 
11  Verm.  116;   Baker  c.  State,  4  Tike's  Aikunsas  56;  People  «.  Rjndurs,  12  Wend,  425; 


JOINDER  or  COUNTS.  13 

Res  V.  Hevice,  2  Yeates  14;  Carlton  v.  Com.,  5  Met.  532;  Kane  v.  People,  9  Wend.  20.3; 
Carg  V.  State,  3  Port.  186;  Com.  v.  Gillespie,  7  S.  &,  R.  496;  State  v.  VVilJjpins,  2  MVoid 
301  ;  Com.  v.  Hope,  22  Pick.;  Josslyn  v.  Ccjm.,  6  Met.  236.  Thus  couii'is  for  ielony  iit 
common  law  may  be  joined  with  counts  for  felony  by  statute;  counts  for  a  felony  with 
aggravation  which  render  it  capital,  with  counts  for  a  felony  which  is  not  capital ;  counts 
for  riots  and  aggravated  assaults,  punishable  by  hard  labour,  with  counts  for  coinmuu 
assaults,  for  which  that  punishment  cannot  be  inflicted.  The  rule  deduced  from  the 
English  authorities  is  that  where  not  only  the  degree,  but  the  legal  character  of  the  offence 
is  different,  and  the  modes  and  incidents  of  trial  ditTer,  no  charge  of  felony  should  be 
joined  with  a  cliarge  of  misdemeanor.  The  test  whether  different  offences  may  or  may 
not  be  charged  in  an  indictment,  seems  not  always  to  be  whether  the  judgments  or  pun- 
ishments consequent  on  conviction  differ  or  not,  (see  per  Ld.  Ellenborough,  in  R.  f. 
Johnson,  3  M.  &  S.  539),  but  whether  the  nature  and  quality  of  the  offences  charged  is 
the  same  or  different ;  in  other  words,  as  it  seems,  whether  one  is  a  felony  and  the  other 
a  mere  misdemeanor  (ib).  The  modern  practice  is  that  several  misdemeanors  may  be 
joined  in  an  indictment,  though  the  judgments  on  each  differ;  and  the  only  case  in  this 
country  which  distinctly  applied  a  more  rigid  practice;  Updegraph  v.  Com.,  6  S.  &  R. 
5;  was  afterwards  overruled.  Counts  for  an  assaulting  witii  intent  to  ravish,  and  for  a 
common  assault;  Harman  v.  Com.,  12  S.  &  R.  476;  Buck  v.  State,  2  Har.  &  J.  426; 
State  V.  Coleman,  5  Port.  52 ;  State  v.  Montague,  2  M'Cord  257  ;  State  v.  Gaffney,  Rice 
431;  counts  for  assaulting  a  constable  and  for  assaulting  prosecutor,  stated  to  be  a  common 
person  (per  Parke  J.,  in  R.  v.  Finucane  and  another,  5  C.  &  P.  551);  for  conspiracy 
and  false  pretences;  for  selling  lottery  tickets  and  conspiracy  to  sell  the  same;  Com.  v. 
Gillespie,  1  S.  Si,  R.  469;  Com.  v.  Sylvester,  6  P.  L.  J.  283;  for  producing  abortion,  and 
for  conspiracy  to  produce  the  same;  Com.  v.  Dernain,  6  P.  L.  J.  29;  for  false  pretences 
and  forgery  at  common  law;  R.  «.  Collier,  5  C.  &  P.  160;  for  entering  closed  land  by 
night  with  another  person,  armed  for  the  purpose  of  killing  game  (a  misdemeanor,  which 
by  9  G.  IV.  c.  61,  s.  9,  can  only  be  tried  at  the  assizes),  and  on  s.  2  for  assaulting  a 
gamekeeper  authorized  to  apprehend,  and  for  assaulting  a  gamekeeper  in  the  execution 
of  his  duty;  and  for  a  common  assault,  R.  v.  Finucane,  5  C.  &  P.  551,  may  be  properly 
joined. 

In  the  United  States,  notwithstanding  the  recognition  of  the  same  line  of  distinction  in 
respect  to  challenges  and  arraignment,  which  obtains  in  England,  the  English  doctrine 
has  been  so  far  extended  as  to  admit  of  tiie  joinder  of  felonies  and  misdemeanors  in  all 
cases  where  the  misdemeanor  is  a  constituent  part  of  tiie  ielony.  1'iius  an  assault  witii 
intent  to  ravish  requires  the  same  kind  of  defence  as  rape  itself;  a  trial  for  the  consummated 
act  involving  a  trial  for  the  attempt;  and  as  no  real  inconvenience  results  to  the  prisoner, 
the  artificial  difliculties  arising  from  the  difference  in  challenges  has  not  been  allovvcd  to 
operate  so  far  as  to  prevent  a  joinder  of  the  offences;  Harman  v.  Com.,  12  S.  &  R.  69  ; 
IJurk  ».  State,  2  Har.  &.  J.  4J6 ;  State  v.  Coleman,  5  Port.  52 ;  State  v.  Montague,  2 
M'Cord  257;  Stater.  Gaffney,  Rice  431  ;  State  v.  Boise,  1  iM'Mullen  190.  But  a  greater 
latitude  has  been  allowed ;  and  the  cases  go  to  sliow  that  where  the  misdemeanor  instead 
of  being  a  constituent  part  of  tiie  felony,  is  merely  a  corollary  to  it,  as  in  the  case  of  lar- 
ceny and  the  receiving  of  stolen  goods,  the  two  offences  may  be  cou|)Ied;  Wh.  C.  L.  108. 

Though  on  the  face  of  an  indictment  every  count  should  import  to  charge  a  different 
offence;  3  T.  R.  106;  the  words  "^Ae  said"  as  applied  to  a  prosecutrix  in  a  second  or 
subsequent  count,  merely  asserting  her  to  be  the  same  person  as  was  mentioned  in  the  prior 
count,  without  re-asserting  her  particular  character  or  age  there  stated ;  e.  ^.  that  she 
was  a  female  child  aged  between  ten  and  twelve;  Reg.  v.  Martin,  9  C.  &  P.  213;  whether 
founded  on  the  same  or  different  facts)  yet  in  practice  the  use  made  of  the  legal  right  to 
join  several  charges  o^  felanij,  is  commonly  no  other  than  the  charging  the  same  offence 
in  different  counts  of  tlie  same  indictment  in  diff -rent  ways,  to  meet  the  several  aspects 
which  it  is  appreiiended  the  case  may  assume  in  evidence,  or  in  which  it  may  be  regarded 
in  point  of  law  by  the  court;  e.g.  where  it  is  doubted  whether  the  goods  stolen  or  the 
house  in  which  a  larceny  was  committed  belong  to  or  is  occupied  by  A.  or  B.,  one  count 
may  state  the  goods,  &lc.,  as  A's,  and  a  second  as  B's ;  R.  v.  Eggington,  2  B.  &  P.  50. 
So  the  same  act,  e.  g.  burglary,  may  be  laid  in  different  counts  to  have  been  done  with 
intent  to  steal  and  to  murder;  R.  v.  Thompson,  2  East  P.  C.  515;  Josslyn  v.  Com.,  6  Met. 
236.  Even  where  six  distinct  houses  in  the  same  row  were  burned  down,  it  was  held 
that  each  house  might  be  the  subject  of  a  distinct  count  in  a  joint  indictment;  R.  v.  True- 
man,  8  C.  &.  P.  727 ;  and  in  Massachusetts  there  is  no  hesitancy  in  including  in  the  same 
indictment  counts  for  the  several  subdivisions  into  which  the  chief  common  law  felonies 
are  there  divided;  Com.  v.  Hope,  22  Pick.  1.  Hut  in  felony,  if  charges  requiring  an  essen- 
tially different  state  of  fact  to  support  them,  though  referring  to  the  san)e  transaction,  be 
joined,  as  a  count  for  robbing  with  a  count  for  assaulting  with  intent  to  rob,  the  court 
will,    in    general,  compel    the  prosecutor  to  make  an  election ;    R,   v.   Gough,   1    M.  &: 


14  COMMENCEMENTS  AND  CONCLUSIONS 

Rob.  71  ;  though  licre  such  rigoTir  is  not  exercised,  and  the  power  of  election  as  to  which 
of  the  two  stages  of  the  defence  tlie  defencifcnt  is  guilty  of,  is  reserved  to  the  jury. 

In  cases  of  misdemeanor  the  books  in  both  countries  agree  that  while  different  counts 
may  be  introduced  applicable  to  the  same  facts  as  in  case  of  felony,  no  objection  can  be 
made  in  an}'  way  even  to  the  joinder  of  counts  a[)plicable  to  different  facts,  so  that  the 
legal  character  of  the  substantive  offences  charged  be  the  same;  per  Ld.  Ellenborough,  in 
R.V.Jones,  9  Campl.  13.  So  conspiracy,  and  charges  of  other  misdemeanors,  may  be 
joined  ;  R.  v.  Johnson,  3  M.  «&,  S.  .539  ;  Kane  v.  People,  8  Wend.  203 ;  State  v.  Rooby,  3 
Harringt.  561;  State  v.  Haney,  2  Dev.  &,  Bat.  390;  U.  S.  v.  Dickinson,  2  M'Lean  325. 
Thus  it  is  the  constant  practice  to  receive  evidence  of  several  assaults  or  libels  on  the 
several  counts  of  the  same  indictment;  and,  on  the  other  hand,  an  indictment  for  an 
assault  by  one  or  more  on  several  is  valid,  though  an  award  of  a  joint  tine  would  be  bad 
and  the  parties  assaulted  could  not  join  in  an  action,  where  each  person  injured  is  to 
recover  separate  damages.  See  dictum  of  Ld.  Mansfield  in  R.  v.  Benfield  and  Saunders, 
2  Burr.  R.  980,  984;  2  Hawk.  c.  25,  s.  89,  denying  R.  v.  Clendon,  2  Strange  870;  Ld. 
Raym.  1572. 


CHAPTER  III. 


COMMENCEMENTS    AND    CONCLUSIONS     IN    THE     FEDERAL    AND    STATE 

COURTS. 

.  I.  FEDERAL  COURTS. (a) 

Commevcemcnt  in  District  of  Massachusetts,  ivhere  the  offence  was  com- 
mitted on  board  of  an  Jlmerican  vessel  within  the  jurisdiction  of  a 
foreign  state. 

United  States  of  America. 

Di.strict(/;)  of  Massachusetts,  to  wit,  {stating  the  court). 

The  jurors  of  the  United  States  of  America,  within  and  for  the  dis- 
trict aforesaid,  upon  their  oath  present  that  A.  B.,  late  of  Boston,  in 
said  district,  mariner,  on,  &c.,  {stating  date)^  *  in  and  on  board  of  the 
barque  Eliza,  then  lying  within  the  jurisdiction  of  a  foreign  state  or 

(a)  The  criminal  pleading  of  the  United  States'  courts,  like  the  civil  pleading,  is  gov- 
erned, under  the  direction  of  tiic  Act  of  178h,  by  the  practice  of  the  states  in  which  the 
particular  courts  are  situated.  Tiiis  is  illustrated  by  the  forms  of  commencements  and 
conclusions  given  in  the  text. 

{h)  'I'he  district  must  be  set  forth  according  to  its  jurisdiction,  as  settled  by  act  of 
congress.  1'hus  where  an  indictment  in  the  Circuit  Court  for  the  Eastern  District  of 
Pennsylvania,  commenced  "  in  the  Circuit  Couit  of  the  United  States,  &,e.,  in  and  for  the 
DiHtrict  of  Pennsylvania,"  Judge  Washiiiglon  lield  that  it  should  ap|iear  by  the  ri'cord 
tiiut  the  jury  wore  sworn  to  inquire  fiir  tlie  district  over  wiiich  the  court  had  jurisdiction, 
and  ns  by  the  Act  of  20lh  Ai)ril,  1818,  Pennsylvania  was  divided  into  two  districts,  and 
ns  the  court  in  which  the  indictment  was  found,  liad  only  jurisdiction  over  one  of  thcsa 
di*lficl.s,  the  judgment   would  liave  to  be  urrustod ;  U.  S.  v.  Wood,  2  Wheel.  C.  C  325. 


IN  THE  FEDERAL  AND  STATE  COURTS.  15 

sovereign,  to  wit,  at  one  of  the  islands  called  the  Navigator's  Island, 
in  the  south  Pacific,  the  said  barque  then  and  there  being  a  ship  or 
vessel  of  the  United  States,  belonging(c)  to  certain  citizens  of  the 
United  States,  whose  names  are  to  this  inquest  unknown,  &c. 

Sa7ne  where  the  offence  was  committed  on  an  American  ship  within  the 
jurisdiction  of  the  United  States. 

Same  as  above  down  to  mark  *,  and  then  proceed:  on  the 
waters  of  Long  Island  Sound,  the  same  being  an  arm  of  the  sea, 
within  the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
and  out  of  the  jurisdiction  of  any  particular  state,  in  and  on  board  of 
the  steamer  M.,  the  same  then  and  there  being  an  American  ship  or 
vessel,  &,c. 

Same  where  the  offence  was  committed  on  the  high  seas  on  board  of  an 
American  vessel. 

Same  as  above  down  to  Tuark  *,  and  then  proceed:  upon  the 
high  seas  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States,  and  out  of  the  jurisdiction  of  any  particular  state,  and 
within  the  jurisdiction  of  this  court,  on  board  of  a  certain  vessel,  to 
wit,  a  schooner  called  the  William  Wirt,  then  and  there  belonging  to 
a  citizen  or  citizens  of  the  United  States  to  the  said  inquest  unknown, 
of  which  said  vessel  a  certain  J.  S.  S.  was  then  and  there  master,  &c. 

Same  where  offence  was  committed  on  high  seas  on  board  a  vessel  whose 
name  was  unknown,  belonging  to  an  American  citizen  whose  name  is 
given. 

Same  as  above  down  to  *,  and  then  proceed :  upon  the  high 
seas  within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  out  of  the  jurisdiction  of  any  particular  state,  and  within 
the  jurisdiction  of  this  court,  on  board  of  a  certain  vessel,  to  wit,  a 
vessel  the  name  whereof  is  to  the  jurors  unknown,  then  and  there 
belonging  to  a  citizen  of  the  United  States,  to  wit,  one  J.  P.  V.,  late 
of  the  district  aforesaid,  &c. 

Same  where  offence  was  committed  by  a  'person  icho  belonged  to  a  vessel 
owned  by  American  citizens,  whose  names  are  known,  the  vessel  being 
at  the  time  lying  in  the  jurisdiction  of  a  foreign  state. 

Sa7ne  as  above  down  to  *,  and  then  proceed :  within  the  ad- 
miralty and  maritime  jurisdiction  of  the  United  States,  on  board  of  a 
certain  vessel,  to  wit,  a  sloop  called  the  C.  W,,  then  and  there  be- 
longing to  S.  P.  W.,  J.  C.  B.  and  N.  F.,  citizens  of  the  United  States, 
while  lying  in  a  place,  to  wit.  Great  Harbour  in  Long  Island  one  of 
the  Bahama  Islands  within  the  jurisdiction  of  a  certain  foreign  sove- 
reign, to  wit,  the  king  of  the  United  Kingdom  of  Great  Britain  and 
Ireland,  a  certain  J.  P.  M.,  late  of  the  district  aforesaid,  mariner,  then 

(c)  In  several  of  the  precedents  the  words  "  in  whole  or  in  part"  are  here  introduced. 


16  COMMENCEMENTS  AND  CONCLUSIONS 

and  there  being  a  person  belonging  to  the  company  of  the  said  ves- 
sel, did,  &c. 

Some  where  offence  was  committed  in  JVavy  Yard. 

Same  as  above  doivn  to  *,  a7id  then  proceed :  at  and  within 
the  navy  yard  adjoining  the  in  the  county  of  in  the  dis- 

trict of  aforesaid,  the  site  of  which  said  navy  yard  had  been, 

before  the  said  day  of  in  the  year  last  aforesaid,  ceded 

to  the  said  United  States,  and  was  on  the  said  last  mentioned  day 
then  and  there  under  the  sole  and  exclusive  jurisdiction  of  the  said 
United  States,  &c. 

Same  ivhere  offence  was  committed  on  ground  occupied  for  an  armory 
or  arsenal. 

Same  as  above  down  to  *,  and  then  proceed :  at  the  said  town 
of  Springfield,  on  land  belonging  to  the  said  United  States,  to 
wit,  on  land  occupied  for  an  armory  or  arsenal,  and  for  purposes 
connected  therewith,  out  of  the  jurisdiction  of  any  particular  state  of 
the  said  United  States,  and  within  the  jurisdiction  of  the  said  United 
States,  &c. 


Commencement  in  Southern  District/)/  New  York. 

Southern  district  of  New  York,  ss.  The  jurors  of  the  United  States 
of  America,  with  and  for  the  district  aforesaid,  on  their  oath  present 
that  A.  B.,  late  of  the  City  and  County  of  New  York  in  the  district 
aforesaid,  heretofore,  did,  &c.,  {stating  the  date,  and  proceeding 
as  in  foregoing  forms). 


Commencement  in  Eastern  District  of  Pennsylvania. 

In  the  Circuit  (or  District)  Court  of  the  United  States  in  and  for  the 
Eastern  District  of  Pennsylvania,  of  Sessions,  in  the  year  of 

our  Lord,  &c. 

Eastern  District  of  Pennsylvania,  ss.  The  grand  inquest  of  the 
United  States  of  America,  inquiring  for  the  Eastern  District  of  Penn- 
sylvania, on  their  oaths  and  aiiirmations  respectively,  do  present  that 
A.  W.  II.,  late  of  the  district  aforesaid,  mariner,  on  tiie  {slating  date, 
and  proceeding  as  in  foregoing  counts). 


Commencement  in  District  of  Virginia. 

In  the  Circuit  (or  District)  Court  of  the  United  States  in  and  for 
the  Virginia  District,  of,  &.C.,  {as  in  lust  form). 


IS  THE  FEDERAL  AND  STATE  COURTS.  17 

The  grand  inquest  of  the  United  States  of  America,  for  the  Vir- 
ginia District,  upon  their  oath  do  present  that  A.  B.,  late  of  the  State 
of  New  York  and  City  of  New  York,  attorney  at  law,  on,  &.C.,  {sla- 
ting the  date,  and  proceeding  as  in  foregoing  counts). 


Conclusion  in  District  of  Massachusetts. 

Against  the  peace  and  dignity  of  the  said  United  States,  and  con- 
trary to  the  form  of  the  statute  of  the  United  States  in  such  case 
made  and  provided. (a?) 


Conclusion  in  Southern  District  of  New  York. 

Against  the  peace  of  the  said  United  States  of  America  and  their 
dignity,  and  against  the  form  of  the  statute  of  the  said  United  States 
in  such  case  made  and  provided. 


Conclusion  in  Eastern  District  of  Pennsylvania. 

Contrary  to  the  form  of  the  act  of  congress  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  United  States. 


Conclusion  in  District  of  Virginia. 

Against  the  constitution,  peace,  and  dignity  of  the  said  United 
States,  and  against  the  form  of  the  act  of  the  congress  of  tlie  said 
United  States  in  such  case  made  and  provided.(e) 

[IVhere  the  offence  icas  committed  ivithin  the  admiralty  and  maritime 
jurisdiction  of  the  United  States,  jurisdiction  over  the  offender  attaches 
to  the  particular  district  to  ichich  he  ivas  bi'ought,  or  in  vhich  he  teas 
apprehended.  In  order  to  show  jurisdiction,  it  is  necessary  for  the  grand 
jury  to  find  an  additional  count  in  all  such  cases,  as  follows:'\ 

Final  count  where  the  offender  was  first  apprehended  in  the  particular 
district. 

And  the  jurors  aforesaid  on  their  oath  aforesaid,  {or  in  Penyisyl- 
vania  oaths  and  affirmations  aforesaid),  do  further  present,  that  the 

((f)  Indictments  in  the  United  States  adapt  themselves  in  their  conclusion,  as  well  as 
tlieir  other  formal  parts,  to  the  practice  of  llie  courts  of  the  states  within  whose  territorial 
limits  they  are  found,  always  rctaininor  the  contra  formam  statuti  as  well  as  the  contra 
jxicem,  there  bcin^  no  common  law  offences  asfainst  the  United  States. 

(e)  The  form  in  the  text  i^s  taken  from  Burr's  case. 

2* 


18  COMMENCEMENTS  AND  CONCLUSIONS 

district  of  in  the  circuit  is  the  district  and  circuit 

in  which  the  said  was  first  apprehended  for  the  said  oflence.(/) 

Final  count  xchere  the  offender  was  first  brought   into  the  "particular 
district. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid  [or  in  Pennsyl- 
vania on  their  oaths  and  affirmations  aforesaid),  do  further  present, 
that  the  district  of  in  the  circuit  is  the  district  and 

circuit  into  which  the  said  was  first  apprehended  for  the  said 

offence. 


II.  STATE  COURTS. 

Maine.     Commencement. 

State  of  Maine,  Kennebec,  to  wit : 

At  the  court,  &c.,  begun,  &c.  {stating  style  of  court),  the  jurors  for 
the  State  of  Maine  upon  their  oath  do  present  that,  &c. 

Conclusion  at  common  laic. 
Against  the  peace  of  the  said  state. (^) 


JVciv  Hainpshire.     Commencement. 

State  of  New  Hampshire,  ss. 

At  the  court  of  common  pleas  holden  at  within  and  for 

the  county  of  aforesaid,  on  the         Tuesday  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  forty  ,  the 
jurors  of  the  State  of  New  Hampshire,  upon  their  oath,  present,  &c. 

Conclusion  for  a  common  law  offence. 
Against  the  peace  and  dignity  of  tiie  state. (A) 

For  a  statutory  offence. 

Contrary  to  tlie  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  state. (/) 

(/)  8ee  under  the  heads  of  piracy,  »fec.,  the  several  methods  used  of  stntinor  the  juris- 
diction in  the  respective  circuits.  The  one  in  tlic  text  is  that  used  in  New  York,  and  in 
connexion  with  that  following-  it,  appears  to  me  to  be  the  most  formal.  In  some  of  the 
forms  in  the  last  named  circuit  the  concluding  averment  is,  "  was  first  brought  and  appre- 
hended." 

ig)  Browne's  case,  1  Greenl.  177;  State  v.  Soule,  20  Maine  R.  19;  Bufman's  case,  8 
Grcrnl.  113. 

(h)  The  conclusion  "against  the  peace  and  dignity  of  our  said  state,"  sufficiently  com- 
plies with  the  constitutional  [)rovision  that  the  conclusion  shall  be  "against  the  peace  and 
dignity  of  tiie  state;"  State  v.  Kean,  10  N.  Ilanip.  347. 

(t;   Infnrmulwn. 

Stattj  of  Nc:w  Hampshire,  ss. 

At  the  court  of  comnion  pleas  holden  at  on  the  Ttifs'^rir  of 

in  tiie  year  of  bur  Lord  one  Ihousunii  eight  liundrcd  and  tbrty  .     Bo  it  remembered. 


IN  THE  FEDERAL  A\D  STATE  COURTS.  19 

Vermont.     Commencement. 

State  of  Vermont.     Windsor  County,  ss. 

The  grand  jurors  within  and  for  the  body  of  the  County  of  Windsor 
aforesaid,  now  here  in  court  duly  empanneled  and  sworn,  upon  their 
oath  present,  &.c.{J) 

Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  state.  (Ar) 

Conclusion  for  statutory  offence. 

Contrary  to  the  form,  force,  and  effect  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of  the  state. 


that  Lyman  B.  Walker,  Esquire,  Attorney-General  for  the  state  aforesaid,  being  here  in 
court,  gives  the  court  to  understand  and  be  informed,  that,  &.c.  {staling  offence),  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided,  and  against  the  peace  and  dig. 
nity  of  the  said  state.  Whereupon  the  said  attorney-general  prays  advice  of  the  court  in 
the  premises,  and  that  due  process  of  law  may  issue  against  the  said 
in  this  behalf,  to  answer  to  the  said  state  in  the  premises,  and  to  do  therein  what  to  law 
and  justice  may  appertain. 

(_;)  This,  as  I  am  informed  by  Mr.  Washburn,  the  learned  reporter  of  the  decisions  of 
the  Supreme  Court,  is  the  usual  form ;  but  in  a  recent  case,  of  which  he  has  kindly  fur- 
nished me  with  the  sheets,  an  indictment  was  sustained,  beginning,  "  State  of  Vermont, 
Chittenden  County,  ss.  The  grand  jurors  for  the  people  of  the  State  of  Vermont  upon 
their  oath  present  that,  ifec." 

"To  the  indictment  itself,"  said  Williams  C.  J.,  in  an  opinion  which  throws  great  light 
on  this  branch  of  pleading,  "the  first  objection  urged  is,  that  it  commences, — 'The  grand 
jurors  for  the  people  of  tlie  State  of  Vermont.'  This  is  not  the  usual  form  of  the  com- 
mencement of  indictments  in  this  state;  but  nevertheless,  it  may  be  questioned,  whether 
it  is  not  more  correct  than  the  one  commonly  used.  The  grand  jurors  in  this  state,  as 
well  as  in  Great  Britain,  are  to  inquire  for  all  offences  in  the  county  for  which  they  are 
returned  ;  2  Hawk.  P.  C.  c.  25,  p.  299.  They  are  to  present  in  behalf  of  and  for  the  sove- 
reign power,  which  is  considered  as  the  prosecutor  for  all  public  offences ;  and  hence  the 
style  or  language  of  the  indictment  is  not  uniform.  In  England,  tiie  form  is,  '  The  grand 
jurors /or  our  Lord  the  King  on  their  oaths  present;'  in  New  York,  '■for  the  people,^  &.c. ; 
in  Massachusetts,  '^for  the  Commonwealth.''  In  some  cases  this  part  of  the  indictment  is 
used  only  to  designate  the  jury,  who  present, — as,  '  The  grand  inquest  of  the  United  States 
for  the  district  of  Virginia;' — 'The  grand  jurors  of  the  United  States  in  and  for  the  body 
of  the  district  of  New  York;' — 'The  grand  jurors  within  and  for  tiie  body  of  the  county,' 
i&c;  and  this  latter  is  the  form  usually  adopted  in  this  state,  and  in  Connecticut.  The 
better  form,  I  think,  is  the  one  used  in  Georgia,  found  in  6  Peters  528 — '  The  grand  jurors 
sworn,  chosen,  and  selected  for  the  county  of  in  the  name  and  behalf  of  the  citizens 

of  Georgia.' 

"  In  this  state,  when  we  wish  to  designate  the  sovereign  power,  we  usually  say — The 
State  of  Vermont;  but  I  apprehend  it  is  as  well  to  designate  it  by  the  term — The  People. 
Proceedings  to  take  the  forfeiture  of  grants  and  charters  were  heretofore  directed  to  be 
prosecuted  in  the  name  of  The  People  of  the  State  ;  Slade's  St.  189  :  and  moreover,  in 
making  a  record  of  a  case  arising  on  an  indictment  by  a  grand  jury,  these  words  might 
be  wholly  omitted;  and,  after  the  caption,  which  sets  forth  that  the  grand  jury  were 
empanneled,  &c.,  it  would  be  sufficient  to  say  that  it  is  presented,  'that  A.  B.'  &c.  We 
cannot,  therefore,  attach  any  importance  to  this  objection  to  the  indictment,  considering 
it  wholly  immaterial  whether  tiie  indictment  commenced  by  saying,  the  grand  jurors  for 
the  county,  or  for  the  state,  or  for  the  people  of  the  stite;  and  that  eitlier  mode  would  be 
conformable  to  approved  forms;"  State  v.  Nixon,  18  Verm.  70;  see  also  State  v.  Hooker, 
17  Verm.  659. 

(i)  By  the  constitution  of  Vermont,  all  indictments  must  conchido,  "against  the  peace 
and  diiriiity  of  the  state;"  sect.  32,  part  ii.  In  a  common  law  otlence,  the  conclusion 
'^ contra  formam'"  is  to  be  rejected  as  surplusage;  State  c.  Plielps,  11  Verm,  R,  118. 


20  COMMENCEMENTS  AND  CONCLUSIONS 

Massachusetts.     Commencement. 

Commonwealth  of  Massachnsetls.     Suffolk,  to  wit: 
At  the  Supreme  Judicial(/)  Court  of  said  Commonwealth  of  Massa- 
chusetts, begun  and  liolden  at  Boston,  within  and  for  the  County  of 
Suffolk,  on  the  first  Monday  of  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  forty 

The  jurors  for  the  Commonwealth  of  Massachusetts  upon  their 
oath  present,  &c. 

Conclusion  for  a  common  law  offence. 
Against  the  peace  of  said  commonwealth. 

For  a  statutory  offence. 

Against  the  peace  of  said  commonwealth,  and  the  form  of  the  sta- 
tute in  such  case  made  and  provided.(/72) 


Connecticut.     Commencement. 

State  of  Connecticut,  &c.     New  Haven  County,  ss. 

New  Haven,  day  of  184     . 

To  the  Honourable  Superior  Court  of  the  State  of  Connecticut  now 
sitting  in  within  and  for  the  County  of  on  the 

Tuesday  of 

The  grand  jurors  within  and  for  said  county,  on  their  oaths  present 
and  inform,  &c. 

Conclusion. 

Against  the  peace  and  contrary  to  the  statute  in  such  case  made 
and  provided.(n) 


(1)  At  Boston  :  "  Al  tlie  Municipal  Court  of  the  City  of  Boston,  begun  and  lioldcn  at 
said  Boston." 

(m)  "  Ajruinst  the  peace  and  the  statute"  has  in  Massachusetts  been  held  to  be  suffi- 
ciently formal;  Com.  v.  Caldwell,  14  Mass.  330;  thougli  "against  the  law  in  such  case 
made  and  provided''  has  been  held  to  be  too  general;  Com.  v.  Stockbridgc,  11  Mass.  279. 
The  object  of  the  conclusion  "  against  the  statute''  is  to  notify  the  defendant  tliat  the 
offence  of  which  he  is  accused,  and  the  penalty  to  which  he  may  be  subject  are  statutory, 
and  not  as  at  common  law  ;  Com.  v.  Stockbridgc,  11  Mass.  279  ;  Com.  v,  Northampton,  2 
Mass.  116;  Com.  v.  Springfield,  7  Mass.  9  ;  Com.  v.  Cooley,  10  Pick.  37.  The  phrase 
"against  the  peace  of  the  commonwealtli"  is  a  proper  conclusion  for  an  offence  at  com- 
mon law;  Com.  v.  Buckingham,  2  Wheel.  C.  C.  162.  The  statutory  termination,  when 
unnecessary,  may  be  treateil  as  surplusage;  Com.  v.  Iloxcy,  16  Mass.  385. 

(n)  The  statutory  conclusif)n  can  be  rejected  as  surplusage  if  necessary,  and  judgment 
piven  at  common  law;  Knowles  v.  State,  3  Day  103;  Swift's  Digest  6ti4-5;  Southworlh 
V.  State,  y  Conn.  SCO. 


IN  THE  FEDERAL  AND  STATE  COURTS.  21 

Information  by  atlorney  for  the  state. 

State  of  Connecticut,     County  of  New  Haven,  ss. 

County  court,  November  term,  one  thousand  eight  hundred  and 
forty-five. 

Dennis  Kimberly,  attorney  to  the  State  of  Connecticut,  for  the 
County  of  New  Haven,  now  here  in  court,  information  makes  that, 
&.C.  {stating  the  offence).  c 

Against  the  peace  and  contrary  to  the  statute  in  such  case  made 
and  provided.  Whereupon  the  attorney  prays  the  advice  of  this 
honourable  court  in  the  premises. 

Information  by  grand  juror. 

State  of  Connecticut.     County  of  New  Haven,  ss. 

To  justice  of  the  peace  for  said  county,  residing  in  said 

town  {or  as  in  last  form),  comes  a  grand  juror  for  said  town, 

and  on  his  oath  of  office  information  makes,  that  at  said  New  Haven 
on  the  day  of  184      ,  &c.  {stating  the  offence),  against 

the  peace,  and  contrary  to  the  statute  in  such  case  made  and  pro- 
vided. Wherefore  the  grand  juror  aforesaid  prays  process,  and  that 
the  said  may  be  arrested  and  held  to  answer  the  complaint, 

and  be  dealt  with  according  to  law.  Dated  at  New  Haven  the  day 
and  year  first  aforesaid. 


Rhode  Island.     Commencement. 

State  of  Rhode  Island  and  Providence  Plantations.   Providence,  ss. 

At  the  Supreme  Judicial  Court  of  the  State  of  Rhode  Island  and 
Providence  Plantations,  holden  at  Providence,  within  and  for  the 
County  of  Providence,  on  the  third  Monday  of  September,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  forty 

The  grand  jurors  of  the  State  of  Rhode  Island  and  Providence 
Plantations,  and  in  and  for  the  body  of  the  Coimty  of  Providence, 
upon  their  oaths  present,  that,  &c. 

Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  state. 

Conclusion  for  statutory  offence. 

Against  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  state. 


J^ew  York.     Commencement. 

City  and  County  of  New  York,  ss. 

The  jurors  of  the  people  of  the  Slate  of  New  York,  in  and  for  the 


22  COMMEXCEMENTS  AND  CONCLUSIONS 

body  of  the  City  and  County  of  New  York,  upon  their  oath  present, 
that,  &c. 

Conclusion  for  common  laiv  offence. 

Against  the  peace  of  the  people  of  the  State  of  New  York,  and 
their  digiiity.(o) 

Conclusion  for  statutory  offence. 

Against  the  form  of  the  statute  in  such  case  made  and  provided,(/)) 
and  against  tlie  peace  of  the  people  of  New  York  and  their  dignity. 


JVew  Jersey.     Commencement. 

In  the  Court,  Sic.,(g)  Count}'-,  to  wit: 

The  grand  inquest  for  the  State  of  New  Jersey,  and  for  the  body 
of  the  County  of  upon  their  present,  that,  &e. 

Conclusion  for  common  law  offence. 

Against  the  peace  of  this  state,  the  government  and  dignity  of  the 
same. 

Conclusion  for  statutory  offence. 

Contrary  to  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  of  this  state,  the  government  and  dignity  of  the  same. 


Pennsylvania.     Commencement. 

In  the  Court  of  for  the  County  of 

Session,  184     . 

The  grand  inquest  of  the  Commonwealth  of  Pennsylvania,  inquir- 
ing for  the  upon  their  oaths  and  affirmations  respectively  do 
present,  &c. 


(o)  See  Rev.  Sfat.  part  4,  c.  2,  s.  51. 

Sec  People  v.  Enoch,  13  Wend.  15.'),  per  Walworth,  Chancellor;  People  v.  M'Kinnon,  I 
Wheeler's  C.  C.  170.  The  only  case  in  which  the  statutory  conclusion  appears  to  be 
omitted  in  New  York  is  assault  and  hattery,  and  in  fact,  as  when  unnecessary  it  is  merely 
surplu.sajre,  it  is  better  to  always  include  it. 

(p)  Against  the  form  of  tlie  sintule  is  sufTicicnt,  thoufjh  the  offence  be  prohibited  by 
more  than  one  statute;  Kane  v.  People,  9  Wend.  203.  By  2  Rev.  Stat.  p.  728,  error  in 
Ktalinjr  the  conclusion  ia  not  fatal. 

fry)  The  court  sliould  appear  in  the  margin,  so  that  the  indictment  may  carry  jurisdic- 
tion, though  if  it  ap|)ear  in  the  caption  when  the  case  goes  up  on  error,  it  is  enough  ;  State 
V.  Zale,  5  llalst.  3 18. 


IN  THE  FEDERAL  A.\D  STATE  COURTS.  23 

Conclusion  for  common  law  offence. 

Against  the  peace  and  dignity  of  the  CommonweaUh  of  Pennsyl- 
vania, (r) 

» 

Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  act  of  assembly  in  such  case  made  and 
provided, (5)  and  against  tiie  peace  and  dignity  of  the  Commonweallli 
of  Pennsylvania. 


Delaware.     Commencement. 

Octobex  Term,  1836.     Kent  County,  ss. 

The  grand  inquest  for  the  State  of  Delaware  and  the  body  of  Kent 
County,  on  their  oath  and  affirmation  respectively,  do  present,  &c. 

Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  state. 

Conclusion  for  statutory  offence. 

Against  the  form  of  the  act  of  the  general  assembly  in  such  case 
made  and  provided, (/)  against  the  peace  and  dignity  of  the  state. (u) 


Maryland. 

Washington  County,  ss. 

The  jurors  of  the  State  of  Maryland  for  the  body  of  Washington 
County,  on  their  oath  present,  &:c. 


(r)  By  the  constitution,  all  prosecutions  have  to  be  carried  on  i  ■■  the  name  and  by  tlic 
authority  of  the  CommonweaUh  of  Pennsylvania,  and  conclude,  ''against  the  pf>ace  and 
dignity  of  the  same ;"  Art.  v.  s.  11.  The  proper  conclusion  is,  "  against  the  peace  and  dig- 
nity of  the  Commonwealth  of  Pennsylvania ;"  Con.  v.  Rogers,  5  S.  <5-,  R.  4G3. 

(s)  See  Warner  »,  Com.,  1  Barr  154;  Com.  v.  Searle,  o  Binn.  332;  Russel  c  Com.,  7 
S.  &  R.  439  ;  White  ».  Com.,  6  Binn.  179  ;  Chapman  v.  Com.,  5  Wh.  427.  Where,  how- 
ever, to  a  common  law  offence  there  is  a  penalty  attached,  but  the  offence  continues 
unchanged,  the  conclusion  ^' contra  formam,"  &c.,  need  not  be  inserted;  and  this  is  even 
the  case  in  an  indictment  for  murder,  though  the  common  law  offence  is  here  divided  in 
two  partitions;  While  v.  Com.,  6  Binn.  17.9. 

When  the  termination  "  against  the  act,"  &.C.,  is  irregularly  inserted  in  a  common  law 
indictment,  the  courts  will  always  regard  it  as  surplusage;  Pa.  v.  Bell,  Add.  171; 
Res  r.  Newell,  3  Yeates  407. 

(t)  "Against  the  form  of  the  acts,"  Sec,  will  not  be  vicious,  though  only  one  act  prohi- 
bits the  offence;  Townley  v.  State,  3  Harris.  377. 

The  statutory  conclusion  can  always  be  rejected  as  surplusage;  State  r.  Craidly,  3 
Harrison  108. 

(u)  See  State  «.  Whaley,  2  Harris.  533. 


24  COMMENCEMENTS  AND  CONCLUSIONS 

Conclusion  for  common  law  offence. 
Against  the  peace,  dignity  and  government  of  the  state. 

Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  act  of  assembly  in  such  cases  made  and 
provided, (y)  and  against  the  peace,  dignity  and  government  of  tlie 
state. 


Virginia.     Commencement. 

Virginia,  Lewis  county,  to  wit : 

The  jurors  for  the  CommonweaUh  of  Virginia  in  and  for  the  body 
of  the  County  of  Lewis,  upon  their  oath  present,  &c. 

Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  conmionweaUh. 

Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  that  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  Commonwealth  of  Vir- 


North  Carolina.     Commencement. 

(x)  County,  to  wit:  Superior  Court  of  law,  Term,  184 

The  jurors  for  the  state  upon  their  oath  present  that,  &c.(y) 


Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  state. (z) 


(e)  State  v.  Ncjjro  Jesse,  7  Gill  &  J.  290.  Where  tlie  punishment  is  prescribed  by 
one  act,  and  the  offence  prohibited  by  another,  it  is  said  tlie  eoiicliision  should  be  •'  ajg'ainst 
the  acts ;"  State  v.  Cassal,  2  Harr.  &  Gill  407  ;  thoujrii  the  weight  of  authority  is  now  the 
other  way;  VVh.  C.  L.  105.  It  seems,  also,  that  when  liierc  is  hut  an  "act,"  the  conclu- 
sion atrainst  tiie  "  acts"  is  of  doubtl'ul  propriety  ;  Slate  v.  Casaal,  2  Harr.  &,  Gill  407  ;  see 
ante,  p.  12. 

(ic)  See  for  this  form.  Com.  v,  Daniels,  2  Va.  Cases  402. 

In  case  of  misdemeanor  it  is  said  that  though  the  name  of  the  county  be  left  blank  in 
llic  margin,  the  deficiency  will  be  made  up  by  the  statement  of  the  county  in  the  body  of 
the  indictment;  Teeft  v.  Com.,  8  Leigh  721. 

(x)  The  omission  of  "North  Carolina"  is  no  cause  fir  arrestin^r  judgment  where  the 
name  of  the  county  appears  in  tlie  margin  or  body  of  the  indictment;  State  v.  Lane,  I 
Iredell  113. 

(y)  Where  the  term  is  stated  in  those  words:  "Fall  Term,  1822,"  and  in  the  body  of 
tlic  indictment  the  offence  is  charged  "on  llif  first  day  of  August  in  the  present  year," 
the  time  is  sufficiently  set  forth;  and  it  is  said  there  is  no  necessity  for  stating  any  liii;c 
in  the  cajjtion  of  an  indictment  found  in  the  county  or  superior  courts;  Slate  r.  lluddoek, 
2  Hawk.  4G1. 

{z)  State  V.  Evans,  5  Iredell  C03, 


IX   THE   FEDERAL  AND  STATE  COURTS. 


Conclusion  for  statutory  offence. 


Contrary  to  the  statute  in  such  case  made  and  provided,(c)  and 
against  the  peace  and  dignity  of  the  state. 


South  Carolina.     Commencement 

The  State  of  South  Carolina,     7  rp^  ^^j^ . 

District,  5 

At  a  Court  of  General  Sessions,  begun  and  holden  in  and  for  the 
district  of  in  the  State  of  South  Carolina,  at  in  the 

district  and  state  aforesaid,  on  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  forty- 

The  jurors  of  and  for  the  District  of  aforesaid,  in  the  State 

of  South  Carolina  aforesaid,  that  is  to  say,  &c.,  upon  their  oaths  pre- 
sent, &.C. 

Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  same  slate  aforesaid. (Z>) 

Conclusion  for  statutory  offence. 

Against  the  form  of  the  act  of  the  general  assembly  of  the  said 
siate(c)  in  such  case  made  and  provided,  against  the  peace  and  dig- 
nity of  the  same  state  aforesaid. 


Georgia. 

Georgia. — Gwinnett  County,  ss. 

The  grand  jurors  sworn,  chosen  and  selected  for  the  County  of 
(Uvinnett,  in  the  name  and  in  the  behalf  of  the  citizens  of  Georgia, 
Oil  their  oath  present,  &.c.{d) 


(a)  State  V.  Jim,  3  Murph.  3,  See  as  to  the  propriel)^  of  concluding  "against  the 
statutes'"  v.iiere  the  act  is  in  violation  of  more  than  one  statute,  Slate  v.  Pool,  2  Dev.  202, 
The  unnecessary  insertion  of  the  qualification  "contra  formnm,^'  &c.,  does  not  vitiate  a 
common  law  indictment;  Haslip  v.  State,  4  Hay,  273  ;  see  arde,  p.  12. 

(ft)  Though  the  commencement  in  the  margin  is  "South  Carolina,"  and  not  "State  af 
South  Carolina,"  a  conclusion  "against  the  peace  and  dignity  of  the  said  state'"  is  good; 
State  t).  Anthony,  1  M'Cord  285.  The  same  ruling  was  had  as  to  the  conclusion  "against 
the  peace  and  dignity  of  this  state,"  and  as  to  that  "against  the  peace  and  dignity  of  the 
same  ;"  the  constitution  prescribing  the  termination,  "  against  the  peace  and  dignity  of  the 
♦same;"  Slate  ».  Yancey,  I  Tr.  Con.  Rep.  237;  State  v.  Washington,  1  Bay  120. 

(c)  Unless  the  statute  is  merely  declaratory  of  the  common  law,  without  adding  to  it  or 
altering  it,  the  conclusion  should  he,  in  all  cases  where  a  statute  comes  into  play,  "  coatrs 
formam  ;"  State  «.  Ripley,  2  Brevard  382. 

{(1)  Worcester  v.  Slate,  6  Peters  520. 

•3 


26  COMMENCEMENTS  AND  CONCLUSIONS 

Conclusion  for  common  law  offence. 
Contrary  to  the  good  order,  peace  and  dignity  of  the  said  state. 

Conclusion  for  statutory  offence. 

Contrary  to  the  laws  of  the  said  state,  the  good  order,  peace  and 
dignity  thereof. 

Alabama.     Commencement. 

The  State  of  Alabama,  County.     In  Circuit  Court,  at 

term,  184     . 

The  grand  jurors  for  the  said  State  of  Alabama,  empanneled, 
sworn  and  charged  to  inquire  for  the  body  of  county,  upon 

their  oath  present,  &c. 

Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  state  aforesaid. 

Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  State  of  Alabama.(f} 

Mississippi.     Commencement. 

The  State  of  Mississippi, (/)  County,  ss. 

In  the  Criminal  Court  for  county,  at  the  term  thereof, 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty- 

The  grand  jurors  of  the  State  of  Mississippi  (taken  from  the  body 
of  the  good  and  lawful  men  of  county)  elected,  empanneled 

and  sworn  to  inquire  in  and  for  the  said  county  of  at  the  term 

of  aforesaid  (in  the  name  and  by  the  authority  of  the  State  of 

Mississippi),(^)  upon  their  oath  present,  &c. 

Conclusion  for  common  law  offence. 

Aeainst  the  peace  and  dignity  of  the  Commonwealth  of  Missis- 
sippi. (A) 

(e)  Son  Stat?  i).  Williams,  3  Stew.  4M ;  State  v.  Coleman,  5  Port.  32. 

If)  It  is  not  essential  that  tlicre  siiould  be  a  formal  statement  of  a  finding  by  authority 
of' the  state.  It  is  enough  if  it  appear  from  tlie  record  that  the  prosecution  is  in  the  state's 
name.     Greeson  ».  State,  5  [low.  JVIiss.  li.  'i'-i. 

ifT)  The  passaires  in  hirueketa,  tiiough  usual,  can  be  omitted.  Woodsides  v.  Stale,  2 
Ili>w.  Miss.  \i.  G.'>5. 

(/()  An  indictment  bepinningf  "State  of  Mississippi,"  and  concluclinfr  "apfainsf  the  peace 
and  dignity  of  tlie  same"  is  BunicJtnlly  precise;  Slate  v.  Jolmsoii,  1  Waliicr  3'Jvi. 


IN  THE  FEDERAL  AND  STATE  COURTS.  27 

Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  Commonwealth  of 
Mississippi. 


Louisiana.     Commencement. 

'     The  State  of  Louisiana,  First  Judicial  District,  ss.     Parish  of  Or- 
leans.    Criminal  Court  of  the  First  District. 

The  grand  jurors  of  the  State  of  Louisiana,  duly  empanneled  and 
sworn,  in  and  for  the  parishes  of  Orleans,  Jefferson  and  Plaquemines, 
upon  their  oath  present,  &c. 

Conclusion  generally. 

Contrary  to  the  form  of  the  statute  of  the  State  of  Louisiana,  in 
such  case  made  and  provided,  and  against  the  peace  and  dignity  of 
the  same.(/) 


Michigan.     Commencement. 

State  of  Michigan.  The  Circuit  Court  for  the  County  of  Wayne, 
of  the  term  of  May  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  forty- 
Wayne  County,  ss.  ^ 
The  grand  jurors  of  people  of  the  State  of  Michigan,  inquiring  in 
and  for  the  body  of  the  County  of  Wayne  aforesaid,  upon  their  oath 
present,  &c. 

Conclusion  for  common  law  offence. 

Against  the  peace  and  dignity  of  the  people  of  the  State  of  Michi- 
gan. 

Conclusion  for  statutory  offence. 

Against  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  people  of  the  State  of  Michi- 
gan. 

(j)  Information, 

Tlie  State  of  Louisiana,  First  Judicial  District,  ss. 

Criminal  Court  of  the  First  District. 

Christian  Rosclius,  Attorney-General  of  the  State  of  Louisiana,  who,  in  the  name  and 
by  the  authority  of  the  said  stale,  prosecutes  in  this  behalf,  in  proper  person  comes  into  the 
Criminal  Court  of  the  first  district,  at  the  City  of  New  Orleans,  on  the  day  of 

in  the  year  of  our  Lord  one  thousand  ei^ht  hundred  and  forty-  ,  and  gives  the  said 

court  here  to  understand  and  he  informed  that,  &,c. 

contrary  to  the  form  of  the  statute  of  the  State  of  Louisiana,  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  tlie  same. 


28  COMMENCEMENTS  AND  CONCLUSIONS 

Ohio.     Commencemevt. 

In  the  court  of,  &c.,  of  term,  county  of 

The  grand  inquest  for  the  State  of  Ohio,  inquiring  for  the  county 
of  upon  their  oath  present,  &.c.{j) 

Conclusion  for  common  latv  offence. 
Against  the  peace  and  dignity  of  the  State  of  Ohio. 

Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  State  of  Ohxo.[Jj) 


Indiana.     Commencements 

State  of  Indiana,  County  of 

In  the  court,  &c.  {setti^ig  out  the  same),  of  term,  184 

The  grand  jurors,  empanneled  and  sworn,  &c.,  to  inquire  for  the 

State  of  Indiana  and  the  body  of  the  county  of  V.,  upon  their  oath 

do  present,  &:c. 

Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute(Z:)  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  tlie  state. (/} 

{])  It  is  not  necessary  that  it  should  be  averred  in  the  indictment,  that  the  grand  jury- 
were  empanncled  and  sworn  to  inquire  within  and  for  the  body  of  tlie  county.  "The 
law,"  it  v/as  said  by  tlie  Supreme  Court  in  this  connexion,  "  points  out  the  duty  of  the 
grand  jury;  the  law  requires  them  to  inquire  within  and  for  tlie  body 'of  the  count}',  when 
they  are  cmpanncled,  and  for  no  other  county;  for  her  they  arc  empannclcd  and  sworn  ; 
therefore,  the  law  presumes  tlie  purpose,  and  it  is  not  error,  any  more  than  it  would  be  to 
omit  to  state  their  number,  to  omit  an  averment  of  the  purpose  for  which  they  are  empaii- 
neled,  when  they  can  under  law  be  empanneled  for  no  other  purpose ;  Ohi5  v.  Hurley,  6 
Ohio  R.  30y. 

(_;)')  Sec  Const,  art.  .3,  s.  12,  where  the  same  termination  is  prescribed  as  is  given  in  the 
Constitution  of  Pennsylvania;  as  to  construction  of  which  sec  ante,  p.  23. 

_  {k)  Notwithstanding  the  general  laxity  of  pleading  in  this  state,  of  which  the  next  note 
gives  a  strong  instance,  an  indictment  was  quashed  which  concluded  against  the  form  of 
the  statute,  instead  of  statutes,  and  the  broad  ground  was  taken  that  when  an  offence  is 
created  by  one  statute,  and  the  putiishment  declared  by  another,  the  plural  termination  is 
essential;  State  ».  Mose.s,  7  lilackf  244.  But  sec  as  to  correctness  of  this  position,  anlo, 
p.  12. 

(/)  Wlicrc  the  w^ords  "and  dignity"  were  omitted,  the  court  amended  the  indictment, 
with  the  consent  of  the  prosecuting  oflicor,  by  inserting  them;  Cain  v.  State,  4  Black''. 
512.  "Tlie  indictment  in  this  case,"  said  Sullivan  J.,  "as  it  was  returned  by  the  grand 
jury,  did  not  conclude  '  against  the  peace  and  dignify  of  the  state'  The  contra  ditrnitateui 
was  omitted.  Before  the  defendant  was  arraigned,  the  prosecuting  attorney  moved  the 
court  to  insert  the  omitted  words.  The  defendant  objected,  but  the  court  overruled  the 
objeelion,  and  )Krinitl,ed  the  amendment  to  bo  made. 

"'J'lio  indictment,  as  it  was  returned,  was  undoubtedly  insufficient;  but  the  question  is, 
wliethcr  the  court  was  authorized  to  amend  it,  so  as  to  make  the  conclusion  of  the  indict- 
ment conform  to  the  rcfpiisifion  of  the  conslitulion  ? 

"'I'hcre  is  no  doulit  but  that  the  court,  by  the  consent  of  the  grand  jury,  may  amend 
indictments  in  matters  of  form.    They  may  be  amended  in  any  case  where  ua  aiLicndnicnt 


IN  THE  FEDERAL   APTD  STATE  COURTS.  29 

Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  state. 

Illinois.     Commencement. 

State  of  Illinois,  County,  ss. 

Of  the  term  of  the  Circuit  Court  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  forty- 

The  grand  jurors  chosen,  selected  and  sworn  in  and  for  the  county 
of  in  the  name  and  by  the  authority  of  the  people  of  the  State 

of  Illinois,  upon  their  oaths  present,  &c. 


Conclusion  for  common  law  offence. 

Against  the  peace  and  dignity  of  the  said  people  of  the  State  of 
lUinois. 

Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  said  people  of  the 
State  of  Illinois. 


Kentucky.     Commencement. 

State  of  Kentucky,  County,  ss. 

The  grand  inquest  of  the  State  of  Kentucky,  inquiring  for  the 
county  of  ,  on  their  oath  present,  &c. 


Conclusion  for  cojnmon  law  offence. 
Against  the  peace  and  dignity  of  the  State  of  Kentucky. 


was  allowable  at  common  law.  In  this  respect,  there  is  no  difference  between  civil  and 
criminal  cases.  The  settled  practice,  when  an  indictment  is  returned  into  court,  is  to  ob- 
tain the  consent  of  the  grand  jury,  that  the  court  may  amend  it  in  matters  of  form,  not 
altering  the  substance. 

"  The  words  with  which  the  constitution  requires  all  indictments  to  conclude,  are  words 
of  form.  The  facts  are  found  by  the  jury  on  their  oath,  but  the  conclusion  is  affixed  by 
law.  The  grand  jury  Iiave  nothing  to  do  with  finding  that  conclusion,  nor  does  the  con- 
stitution require  that  it  should  be  found  by  the  grand  jury.  The  anicndniont  made  in  this 
case  did  not  hinder,  delay,  or  embarrass  tiie  defendant,  nor  did  it  deprive  him  of  any  just 
means  of  defence. 

"We  think  the  court  did  right  in  permitting  the  amendment  to  be  mnde,  and  that  tiie 
jiidgment  of  the  Circuit  Court  should  be  affirmed;  1  Chit.  C  L,  2^7-8,  and  tlic  authori- 
ties cited ;  1  Saund.  R.  1219,  n.  1." 


30  COMMENCEMENTS  A\D  CONCLUSIONS' 

Co7icIusion  for  statutory  offence. 

Against  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  State  of  Kentucky. (m) 


Tennessee.     Coinmeii  cement. 

State  of  Tennessee.  Hardin  County^  Circuit  Court, (n)  November 
term,  1829. 

The  grand  jurors  of  the  State  of  Tennessee,  elected,  empanneled, 
sworn  and  charged  to  inquire  for  the  body  of  the  County  of  Hardin 
aforesaid,  upon  their  oath  present,  &c. 

Conclusion  for  common  laiv  offence. 
Against  the  peace  and  dignity  of  the  state. (o) 

Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  state. 

(m)  The  conclusion  '■'■  contra  formam,''''  Slc,  if  improperly  introduced,  cnn  always  be 
treated  as  surplusage;  Com.  v.  Gregory,  2  Dana  103.  Notwithstanding  the  constitutional 
provisions  that  all  prosecutions  should  be  carried  on  in  the  name  and  by  the  authority  of 
the  Commonwealth  of  Kentucky,  it  is  not  requisite  that  indictments  should  so  conclude. 
This  point  was  discussed  by  chief  justice  Boyle,  in  an  elaborate  opinion  in  Allen  v.  Com., 
2  Bibb  210.  "At  the  common  law,"  he  said,  "prior  to  the  Revolution,  prosecutions  were 
carried  on  in  the  name  and  by  the  authority  of  the  king,  in  his  political  capacity;  bnt  the 
forms  of  indictment  show  that  it  was  unnecessary  to  he  expressed,  to  be  found  by  his  au- 
thority. When  we  threw  off  the  regal  government  and  adopted  the  republican  form,  it 
became  necessary  to  provide  that  prosecutions  should  be  carried  on  in  the  name  and  by  the 
autliority  of  the  commonwealth:  but  as  under  the  regal,  so  under  our  present  form  of  gov. 
ernment,  it  is  equally  unnecessary  that  an  indictment  should  expressly  aver  by  what  au- 
thority it  is  found  and  carried  on.  Tliis  indictment  was,  as  all  other  indictments  must  be, 
carried  on  by  tiic  authority  of  the  Commonwealth  of  Kentucky,  and  not  by  the  authority 
of  any  other  power;  and  that  is  alone  vil)ut  the  constitution  requires." 

In  an  indictment  for  a  misdemeanor,  however,  tiie  prosecutor's  name  must  be  endorsed 
before  the  bill  can  go  in  to  tlie  grand  jury.  Thus,  in  the  last  cited  case  it  was  said :  "  In 
the  case  of  Ilutcheson  v.  The  Commonwealth,  decided  Full  Term,  1809  (vol.  i.  p.  355),  it 
was  held  that  a  dismission  for  want  of  a  prosecutor,  on  the  motion  of  the  defendant,  after 
issue  joined  upon  the  pica  of  not  guilty,,  and  part  of  the  jury  sworn,  was  correct.  Tiiat 
was  a  stronger  case  than  the  present.  In  this  case  the  plea  of  auterfois  convict  had  been 
pleaded,  but  issue  had  not  been  joined  upon  it  when  the  motion  to  dismiss  was  made. 

"The  argument  that  in  requiring  a  prosecutor,  the  object  of  the  law  was  to  enable  the 
defendant  to  ri-cover  his  costs,  in  case  of  a  judgment  in  his  favour,  and  that  by  setting 
down  a  prosecutor,  as  jjcrmittcd  by  the  court  below,  that  object  would  be  obtained,  seems 
not  to  obviate  the  objection.  The  law.  requires  that  it  should  have  been  done  before  the 
indictment  was  presented  to  the  grand  jury;  see  1  Litt.  It.  K.  473-4.  In  a  case  of  tliis 
kind,  the  \a.\v  must  be  strictly  pursued,  and  we  cannot  adopt  other  means  than  those  which 
the  law  has  appointed  to  attain  its  object,  however  much  we  may  suppose  them  calculated 
for  that  i)urpose." 

(n)  It  should  appear  in  w'hat  court  the  indictment  is  found,  so  that  it  shall  carry  with 
it  jurisdiction  ;  Dean  v.  Stale,  Mart.  &.  Yerg.  127. 

'i'hc  grand  jury  must  appear  from  the  wliolc  record,  to  come  from  the  county  over 
whicli  the  court  has  jurisdiction;  Tipton  v.  State,  Peck's  R.  8;  Cornell  v.  State,  Mart. 
<S6  Ycrg.  147. 

(o)  State  V.  Barnes,  5  Yerg.  187.  The  object  of  the  conclusion  "  contra  formam,''^  iVc, 
is  to  indicate  to  the  court  and  the  defendant  iJiat  the  otleuce  and  the  penally  arc  blalutory  ; 
Grain  v.  State,  2  Yerg.  3.90. 


IS  THE  FEDERAL  AND  STATE  COURTS.  31 

Missouri.     Commencement. 

State  of  Missouri,  A.  county,  ss. 
The  Circuit  Court,  term,  184     . 

The  grand  jurors  for  the  State  of  Missouri  for  A.  county,  sworn  to 
inqaire,(yj)  upon  their  oath  present,  &c. 

Conclusion  for  common  law  offence. 

Against  the  peace  and  dignity  of  the  state. 

Conclusion  for  statutory  offence. 

Contrary  to  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  state.(5') 


Arkansas.     Commencement. 

State  of  Arkansas,  County,  ss. 

Court,  &c.,  of  term,  1S4     . 

The  grand  jurors  for  the  State  of  Arkansas,  sworn  and  charged  to 
inquire  for  tlie  county  of  upon  their  oath  present,  &.c. 

Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State  of  Arkansas,  (r) 

Conclusion  for  statutory  (ffence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  tlie  peace  and  dignity  of  the  State  of  Arkansas. 

(p)  "Sworn  to  inquire"  is  surplusage,  though  it  is  the  practice  to  introduce  it. 

{q)  The  indictment  is  usually  signed  "C,  D.,  circuit  attorney,"  though  this,  it  seems,  is 
unnecessary  ;  Thomas  v.  State,  6  Miss.  457. 

(r)  The  constitutional  provision,  that  the  conclusion  shall  be  "  against  the  peace  and 
dignity  of  the  State  of  Arkansas,"  will  not  be  deviated  from  by  the  insertion  of  the  words 
"  the  people  of"  before  tJie  state ;  Anderson  r.  State,  5  Fike  44o. 


BOOK  THE  SECOND 


CHAPTER  I. 

ACCESSARlES.(a) 

Against  accessary  before  the  fact  together  with  the  principal. 

.  {Jlfter  charging  the  principal  with  the  offence,  and  immediately 
^,  before  the  conclusion  of  the  indictm,ent,  charge  the  accessary  thus): 
/,  A.nd  the  jurors  aforesaid,  upon  their  oatli  aforesaid,  do  furtiier  pre- 

(c)  {Who  arc  accessaries ; — Time  of  trial  and  venire).  An  accessary  is  he  who  is  not 
the  chief  actor  in  an  offence,  nor  present  at  its  performance,  but  is  in  some  way  concern- 
tci  therein,  either  before  or  after  tlie  fact  committed;  4  Bla.  Com.  35;  Burr's  case,  4 
('ranch  502 ;  Com.  ».  Andrews,  3  Mass.  126 ;  Com.  «.  Brig-gs,  5  Pick.  429 ;  Com.  v.  Wood- 
ward, Thach.  C.  C.  63;  State  t).  Groff,  1  Murph.  270;  Com.  v.  Williamson,  2  Va.  Cases 
2il. 

An  accessary  before  the  fact  is  he,  who,  being'  absent  at  tlie  time  of  the  commission  of 
a  felony,  '■^procures,  counsels  or  Commands'''  the  principal  felon  to  commit  it;  1  Hale  613  ; 
as  if  several  plan  a  theft  which  one  is  to  execute,  or  if  a  person  incites  a  servant  to  em- 
bezzle the  goods  of  his  master.  Command  includes  all  those  vi'ho  incite,  procure,  set  on 
or  stir  up  any  otlier  to  do  the  fact;  Foster  126;  East's  P.  C.  641 ;  2  Hawk.  c.  33,  s.  65; 
State  V.  Ilanna,  1  Hay.  4 ;  Wh.  C.  L.  34 ;  People  v.  Norton,  8  Cow.  137. 

An  accessary  after  the  fact  is  one  who,  knowing  a  felony  to  have  been  committed,  re- 
ceives, liarbours,  relieves,  comforts  or  assists  the  princi|)al  or  accessary  before  the  fact, 
with  a  view  to  liis  escape;  1  Hale  618.  Employing  another  to  harbour  felons  seems  suf- 
ficient to  constitute  this  offence;  4  Bla.  C.  37  ;  2  Hawk.  c.  99,  s.  1  ;  3  P.  Wms.475  ;  but  the 
assisting  must  be  to  tlie  felons  personally ;  Reg.  t).  Chappie  and  others,  9  C.  &  P.  355. 

As  in  treasons,  so  in  misdemeanors,  there  arc  no  acccssaiies,  but  in  felonies  only;  1 
Hale  238,  613 ;  Foster  341  ;  Wh.  C.  L.  33.  "  In  the  highest  oflences  (crimen  laesac  ma- 
jestatis),  and  in  the  lowest  {riots,  routs,  forcible  entries,  and  vi  el  armis),  there  be  no  ac- 
cessaries; but  in  felonies  there  be,  both  before  and  after;"  sec  Co.  Lit.  57,  a.  b.  What 
makes  a  man  accessary  before  the  fact  in  felony  makes  him  principal  in  misdemeanor ; 
Reg.  «.  Clayton  and  Mooney,  C.  &  K.  128,  The  rule  is  proved,  says  Serjeant  Talfourd, 
by  the  exception  in  misdemeanors  punishable  under  act  against  malicious  injuries  to  per- 
son. In  this  country  the  same  rule  has  been  settled  by  repeated  adjudications;  Whit- 
akcr  V.  English,  1  Bay  15;  Chanit  v.  Parker,  1  Rep.  Con.  Ct.  3.33;  State  v.  Goodc, 
I  Hawks  4fi3;  Ciirlin  n.  State,  4  Yerg.  143;  Com.  t>.  M'Atce,  8  Dana  28;  Com.  v. 
Major,  6  Dana  293;  Com.  v.  Burns,  4  .T.  J.  Marsh.  182;  Com.  v.  Gillespie,  7  S. 
&  k.  469;  U.  S.  V.  Morrow,  4  W.  C.  C.  733;  Com.  v.  Maeombcr,  3  Mass.  254;  U.  S. 
t.  Mills,  7  Peters  3S;  Slute'  v.  Weslficld,  1  Bail.  132;  Stiite  v.  Harden,  I  Dcv.  518. 
Nor  were  there  in  ICngbind  any  accessaries  in  larceny  under  or  to  tiie  value  of  12./., 
until  the    7  and  8   G.    IV.  c.   ^9,   abolished  the    dislinstion   between  grand   and  petty 


ACCESSARIES.  33 

sent,  that  J.  W.,  late  of  the  parish  aforesaid,  in  the  county  aforesaid, 
labourer,  before  the  said  [felony  and  larceny)  was  comtnitted  in  form 
aforesaid,  to  wit,  on  the  first  day  of  August,  in  the  year  aforesaid,  at 


larceny,  and  rendered  the  law  of  grand  larceny  applicable  to  all  cases  of  thefl,  however 
trifling  in  value. 

At  common  law  a  party  guilty  of  receiving  stolen  goods  did  not  come  within  the  defini- 
tion of  an  accessary  after  the  fact;  but  his  otFence  was  made  punishable  as  that  of  an  ac- 
cessary alter  the  fact  and  otherwise  by  statutes  existing  in  every  state  of  the  Union  and 
which  will  be  noticed  under  the  proper  head.  No  accessaries  before  or  after  the  fact 
could  at  common  law,  without  tiieir  consent  be  brought  to  trial,  unless  with  tlie  principal 
or  after  his  guilt  has  been  legally  ascertained  by  his  conviction  on  having  taken  his  trial 
singly;  or,  after  his  outlawry  on  a  capital  crime,  which  is  equivalent  to  attainder;  4  Bla. 
C.  40,  132;  and  even  the  entry  of  a  plea  does  not  waive  the  prisoner's  right  to  call  for  the 
record  of  the  principal's  conviction;  Fost.  360;  U.  S.  v.  Berry,  4  Cranch  502.  Even  the 
death  of  the  principal  before  conviction  does  not  relieve  the  prosecutors  from  the  pressure 
of  the  rule;  Com.  v.  Phillips,  16  Mass.  423.  In  North  Carolina  the  principle  has  been 
somewhat  expanded,  it  having  been  there  held  that  the  accessary  is  not  liable  to  be  tried 
while  the  principal  is  amenable  to  the  laws  of  the  state,  and  is  still  unconvicted  ;  State  p, 
Goode,  1  Hawks  463;  Stale  v.  GrofF,  1  Murph.  270;  see  Harris  v.  State,  3  Blackf  386. 
But  now  in  England  by  7  G.  IV.  c.  64,  s.  11,  and  in  many  of  the  United  States  by  statutes 
of  similar  import,  in  order  that  all  accessaries  may  be  convicted  and  punished  in  cases 
where  the  principal  felon  is  not  attainted,  it  is  enacted  that  if  any  principal  offender  shall 
be  in  anywise  convicted  of  any  felony,  it  shall  be  lawful  to  proceed  against  any  accessary, 
either  before  or  after  the  fact,  in  the  same  manner  as  if  such  principal  felon  had  been  at- 
tainted thereof,  notwithstanding  such  principal  felon  shall  die,  be  (admitted  to  benefit  of 
clergy,  or)  pardoned,  or  otherwise  delivered  before  attainder :  and  every  such  accessary 
shall  suffer  the  same  punishment,  if  in  anywise  connected,  as  he  or  she  should  have  suf- 
fered  if  the  principal  had  been  attainted;  Dickinson's  Q.  S.  6th  ed.  !293.  See  as  ta  Massa- 
chusetts statute,  post,  p.  85,  n.  g. 

{Principals  in  Jirst  and  second  degrees).  All  parties  who  are  present  at  the  fact  of 
committing  a  felony,  and  concur  therein,  are  principals,  whether  they  assist  by  manual 
exertion  (which  constitutes  them  principals  in  the  ^first  degree),  or  only  by  command,  co- 
Operation  or  encouragement,  thourrh  they  were  anciently  deemed  only  accessaries,  viz, 
down  to  the  reign  of  Hen.  VII.;  se^e  Plowden  100  ;  Wh.  C.  L.  28. 

A  constructive  presence  suffices  to  make  a  man  a  principal  (in  the  second  degree)  as  an 
aider  and  abettor;  for  he  need  not  be  actually  present;  if  an  eye  or  ear  witness  of  the  trans- 
action, he  is,  in  construction  of  law,  '■^present,  aiding  and  abetting,''''  (i.  e.  encouraging  or 
setting  on).  This  term  includes  seconds  present  at  a  fatal  duel ;  see  Reg.  v.  Cuddy,  C.  & 
K.  210 ;  if  he  act  in  concert  with  the  principals,  and  if  with  the  intention  of  giving  them 
assistance,  he  be  near  enough  at  the  time  of  the  felony  committed,  to  afford  it,  should  the 
occasion  arise,  e.  g.  by  watching  outside  a  house  to  prevent  surprise,  while  his  compa- 
nions are  committing  the  felony,  or  to  receive  goods  which  they  are  stealing  in  it,  or  re- 
maining at  convenient  distance  in  order  to  favour  their  escape  if  necessary  ;  Fost.  350;  1 
Hale  439;  see  R.  v.  Borthvvick,  1  Dougl.  207;  R.  v.  Gogerly,  R.  &  R.  343;  R.  v.  Owen, 
1  Mood.  C.  C.  96;  R.  v.  Stewart,  R.  &  R.  303;  Plowden  96.  If,  however,  he  is  con- 
structively present,  with  the  intent  not  of  assisting  but  of  detecting  the  felony,  he  has  not 
the  felonious  intent  necessary  to  convict  him  as  a  principal  felon,  though  his  motive  in  so 
acting  was  to  get  a  reward;  R.  v.  Dannelly  and  another,  2  Marsh.  571  ;  S.  C,  R.  &c  R. 
310.  Where  the  parties  are  principals  in  the  second  degree  as  well  as  in  fact  tiiey  are 
in  the  first,  they  may  be  charged  either  way  in  one  count;  Reg.  v.  Crisham,  C.  &.  M.  187, 
(Maule  J.  and  Rolfe  B.) ;  or  both  ways  in  different  counts.  Thus  an  indictment  in  its  first 
count  charged  that  Folkes  ravished  E.,  and  Ludds  at  the  time  of  committing  the  said 
felony  and  rape  in  form  aforesaid,  to  wit,  on,  &lc.,  with  F.  and  A.  at,  &,c.,  feloniously  was 
present  aiding,  abetting  and  assisting  Folkes  the  felony  and  rape  to  do  and  commit  against 
the  peace,  «fcc. ;  and  in  other  counts  Ludds  was  charsrcd  as  i)rincipal  and  Folkes  as  aider  ; 
in  others  an  "evil  disposed  person  unknown"  was  laid  as  principal,  and  Folkes  and  Ludds 
as  aiders;  and  Ludds  was  acquitted,  Folkes  convicted  generally,  it  appearing  that  the  lat- 
ter,  with  three  other  men  had  committed  at  same  |)lace  and  time,  one  after  the  other  sue. 
cessively,  rapes  on  E.,  the  others  aiding,  &c.,  in  turn.  It  was  said  that  distinct  offences 
liable  to  distinct  punishments  were  charged,  and  that  there  was  therefore  a  misjoinder ; 
as  9  G.  IV.  c.  31,  contained  no  specific  provision  against  aiders  and  abettors  in  rape.  IKld 
by  the  juifgcs,  on  case  reserved,  that  the  conviction  was  good  on  the  first  count  charging 
hini  as  principal;  and  that  on  such   an  indictment  several  rapes  on  the  same  woman  b/ 


34  ACCESSARIES. 

the  parish  aforesaid,  in  the  county  aforesaid,  did  feloniously  and  ma- 
liciously incite,  move,  procure,  aid,  counsel,  hire,  and  command  the 
said  J.  S,  the  said  [felony  and  larceny)  in  manner  and  form  afore- 
said to  do  and  commit.(6)     [Conclude  as  ante,  book  1,  chap.  3). 


Indictment  against  an  accessary  before  the  fact,  the  principal  being 
convicted. 

Middlesex,  to  wit:  The  jurors  for  our  lady  the  queen  upon  their 
oaths  present,  that  heretofore,  to  wit,  at  the  general  sessions  of  the 
delivery  of  tlie  gaol  of,  &c.  &c.  [so  continuing  the  caption  of  the 
indictment  against  the  principal),  it  was  presented  upon  the  oaths 
of,  &c.,  that  one  J.  S.,  late  of,  &c.  [continuing  the  indictment  to  the 
end,  reciting  it,  however,  in  the  past,  and  not  in  the  present  tense), 
upon  which  said  indictment  the  said  J.  S.,  at  the  session  of  the  gaol  de- 
livery aforesaid,  was  duly  convicted  of  the  [felony  and  larceny) 
aforesaid,  as  by  the  record  thereof  more  fully  and  at  large  appears.(c)* 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  J.  W,,  late  of  the  parish  aforesaid,  in  the  county  aforesaid, 
labourer,  before  the  said  [felony  and  larceny)  was  committed  in  form 
aforesaid,  to  wit,  on  the  first  day  of  May  in  the  year  aforesaid,  at 
the  parish  aforesaid,  in  the  county  aforesaid,  did  feloniously  and  mali- 
ciously incite,  move,  procure,  aid,  counsel,  hire  and  command  the 
said  J.  S.  the  said  [felony  and  larceny)  in  manner  and  form  aforesaid 
to  do  and  commit ;  against  the  peace,  &.c,,  [as  in  ordinary  cases). 


prisoner  and  other  men,  each  assisting  the  other  in  turn,  might  be  proved  without  putting 
the  crown  to  elect  which  count  to  proceed;  Folke's  c;ise,  1  Alood.  C.  C.  354. 

An  indictment  aguinst  G.  and  \V.  cliarged  in  the  first  count  W.  as  principal  and  G.  as 
an  aider,  in  tlie  second  it  charged  G.  as  principal  and  W.  as  aider,  (viz.  as  principal  in 
second  degree).  Coleridge  J.  refused  a  motion  to  quash  the  indictment  for  misjoinder;  R. 
V.  Gray  and  Wise,  7  C.  &  P.  164;  see  R.  v.  Parry  and  others,  7  C.  &  P.  83G ;  Dickinson's 
Q.  S.  Gih  ed.  29.'}. 

(b)  Mr.  Archbold,  in  his  note  to  this  form,  says:  "The  act  of  accessary  before  the  fact 
is  described  in  the  several  statutes  creating  new  felonies,  or  punishing  with  death  the 
principal  and  accessaries  in  felonies  at  common  law,  in  different  terms.  In  i)rndoncc,  per- 
liaps,  it  will  be  l)ettcr  to  pursue  the  words  of  the  statute  upon  which  the  indictment  is 
framed,  in  describing  the  offence  of  the  accessary;  but  if  the  statute  do  not  mention  acces- 
saries, or  in  the  ease  of  a  felony  at  common  law,  the  words  in  the  above  (brm,  'incite, 
move,  procure,'  &,c.,  will  be  sufficiently  indicative  of  the  offence.  And  even  where  the 
statute  does  expressly  describe  the  offence  of  accessary  in  terms,  it  is  not  absolutely  neces- 
sary to  describe  it  in  the  same  terms  in  the  indictment;  a  description  in  equivalent  terms 
will  be  sufficient;  thus,  where  the  words  in  the  statute  were  'command,  hire  or  counsel,' 
and  in  the  indictment,  'excite,  move  and  procure,'  t!ie  indictment  was  iiolden  good; 
because  the  words  were  of  the  same  legal  imi)ort;  R.  v.  Grevil,  1  And.  ISI.'j.  A  man  may 
be  indicted  as  accessary  to  one  of  several  |)rinci|)als  or  to  all,  and  if  he  be  indicted  as 
accessary  to  all,  ho  may  be  convicted  o!i  such  indictment  as  accessary  to  one  or  some  of 
thern  ;  Lord  Sanchar's  case,  9  Co.  11!);  Fost.  3G1  ;  1  Hale  624.  An  indictment  charging 
that  a  certain  evil  disposed  person  feloniously  stole  certain  goods,  and  that  A.  B.  felo- 
niously incited  the  said  evil  disposed  person  to  commit  the  said  felony,  is  bad  against 
A.  B.;  Reg.  v.  Caspar,  2  Mood,  C.  C.  101 ;  •)  C.  &-  P.  289;"  Accessaries,  Arch,  C.  P. 
811, 

(c)  In  setting  out  the  indictment  against  the  principal,  it  is  not  sufficient  to  allege  that 
"at  the  sessions  of  gaol  d(;livory,  iV'c.,  it  was  presented,"  &,c.,  without  saying  by  whom, 
and  on  oath,  &c.;  Reg.  v.  Buttcrfield,  2  iVI.  &  Rob.  52ii.  As  to  the  venue,  see  Arch.  C.  P. 
815. 


ACCESSARIES.  35 

■    Indictment  against  accessary  after  the  fact  with  the  principal. 

{Jjffer  stating  the  offence  of  the  principal,  and  immediately  be- 
fore the  conclusion  of  the  indictment,  charge  the  accessary  after  the 
fact  thus):  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur- 
ther present,  that  J.W.,lateof  the  parish  aforesaid,  in  the  county  afore- 
said, labourer,  well  knowing  the  said  J.  S,  to  have  done  and  com- 
mitted the  said  {felony  arid  larceny)  in  form  aforesaid,  afterwards,  to 
wit,  on  the  day  and  year  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  him  the  said  J.  S.  did  feloniously  receive,  harbour 
and  maintain. (of)    [Conclude  as  ante,  book  \,  chap.  3). 

Indictment  against  an  accessary  after  the  fact,  the  principal  being 
convicted. 

[Proceed  as  in  the  precedent,  ante,  p.  34,  to  the  asterisk;  and 
then  thus) :  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  J.  W.,  late  of  the  parish  aforesaid,  in  the  county 
aforesaid,  labourer,  well  knowing  the  said  J.  S.  to  have  done  and 
committed  the  {felony  arid  larceny)  aforesaid,  after  the  same  was 
committed  as  aforesaid,  to  wit,  on  the  day  and  year  aforesaid,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  him  the  said  J.  S.  did  felo- 
niously receive,  harbour,  and  maintain,  against  the  peace,  &c.  {as  in 
ordinary  cases). {e) 

Against  accessary  before  the  fact  generally  in  Massachusetts. 

{Charge  the  offence  against  the  principal  in  the  usual  form,  and 
proceed) :  And  the  jurors  aforesaid  upon  their  oath  do  further  pre- 
sent, that  A.  B.,  of  in  the  County  of  yeoman,  before 
the  said  felony  and  murder  {or  burglary,  <S'C.)  was  committed,  in 
manner  and  form  aforesaid,  to  wit,  on  at  was 
accessary  before  the  fact,  and  feloniously  and  maliciously  {in  murder 
say,  "  and  of  his  malice  aforet bought,''  instead  of  maliciously),  did 
hire  and  procure  the  said  C.  D.  {the  principal)  the  felony  and  murder 
aforesaid,  in  manner  and  form  aforesaid,  to  do  and  commit;  against 
the  peace  of  said  commonwealth,  and  contrary  to  the  form  of  the  sta- 
tute in  such  case  made  and  provided. (/) 

(d)  Arch.  C.  P.  817.  (e)  Arch.  C.  P.  820. 

(/)  The  Rev.  Stat.  c.  13.3.  s.  1  and  2,  provide:  "Every  person,  who  shall  be  aiding 
in  the  commission  of  any  offence  which  shall  be  a  felony,  either  at  common  law,  or  by 
any  statute  now  made,  or  which  shall  hereafter  be  made,  or  who  shall  be  accessary  thereto 
before  the  fact,  by  counseling,  hiring',  or  otherwise  procuring  such  felony  to  be  committed, 
shall  be  punished  in  the  same  manner,  which  is  or  which  shall  be  prescribed  for  the  pun- 
ishment of  the  principal  felony. 

"  Every  person,  who  shall  counsel,  hire,  or  otherwise  procure  any  offence  to  be  committed 
which  shall  be  a  felony,  either  at  common  law,  or  by  any  statute  now  made,  or  which 
shall  hereafter  be  made,  ma}'  be  indicted  and  convicted  as  an  accessary  before  the  fact, 
either  with  the  principal  felon,  or  after  the  conviction  of  the  principal  felon,  or  he  may  be 
indicted  and  convicted  of  a  substantive  felony,  whether  the  ,jrincipal  felon  shall  or  shall 
not  have  been  convicted,  or  shall  or  shall  not  be  amcnible  to  justice,  and  in  the  last  men- 
tioned case  may  be  punished  in  the  same  manner  as  being  convicted  of  Leing  an  acces- 
sary before  the  fact." 

The  form  in  the  text  is  based  on  the  above  statute,  and  is  in  conformity  with  those  given 
by  Mr.  Davis  under  it. 


36  ACCESSARIES. 

li.dictment  against  an  accessary  before  the  fact,  in  murder,  at  common 

/aiv. 

[Frame  the  indictment  against  the  principal  in  the  usual  form, 
uHeging  the  nature  of  the  murder,  and  then  proceed  as  follows) : 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  A.  B.  of  in  the  county  of  labourer,  before  the 
Said  felony  and  murder  was  committed,  in  form  aforesaid,  to  wit,  on 
the  day  of  in  the  year  of  our  Lord  one  thousand  eight 
himdred  and  with  force  and  arms,  at  in  the  county  afore- 
said, was  accessary  thereto  before  the  fact,  and  did  feloniously  and 
maliciously  incite,  move,  procure,  aid,  counsel,  hire  and  command 
the  said  C.  D.  to  do  and  conmiit  the  felony  and  murder  aforesaid,  in 
manner  and  form  aforesaid. (^)  {Conclude  as  in  jjrecedents  for  mur- 
der, postea). 

Accessaries  before  the  fact  in  Massachusetts. 

[After  alleging  the  murder  against  the  principal,  in  the  usual 
form,  upon  the  first  section  of  the  statute  of  Massachusetts,  1804, 
c.  123,  §  1,  the  indictment  proceeds) :  And  the  jurors  aforesaid,  upon 
their  oath  al'oresaid,  do  further  present,  that  J.  J,  Knapp,  of  &c.,  and 
George  Crowninshield,  of  &c.,  before  the  said  felony  and  murder  was 
committed,  in  manner  and  form  aforesaid,  to  wit,  on  at 

were  accessary  thereto  before  the  fact,  and  feloniously,  wilfully 
and  of  their  malice  aforethought,  did  counsel,  hire  and  procure  the 
said  J.  J.  Knapp  [the principal)  the  felony  and  murder  aforesaid,  in 
manner  and  form  albresaid,  to  do  and  commit;  against  the  peace  of 
said  commonwealth,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. (/j) 

Against  an  accessary  for  harbour ing  a  'principal  felon  in  murder. 

[Frame  the  indictment,  against  the  principal  felon,  according 
to  the  farts  in  the  case,  and  in  the  usunl  form  ;  then  go  on) :  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  A,  E.jlate  of  in  the  county  of  labourer,  well  knowing 

the  said  C.  D.  to  have  done,  committed  and  perpetrated  the  felony 
and  murder  in  manner  and  form  aforesaid,  afterwards,  to  wit,  on  the 
day  of  in  the  year  of  our  Lord  ,  with  force  and 

arms,  at  aforesaid,  in  the  county  aforesaid,  was  accessary  there- 

to, and  him  the  said  C.  D.  did  then  and  tliere  feloniously  receive,  har- 
bour, comfort,  conceal  and  maintain,  &c.(/)    [Coiicludc  as  above). 

(IT)  CV.  C.  r.  124;  2  Cliit.  C.  L.  5;  ih.  121. 

(h)  Tills  was  tlic  indictment,,  as  wo  arc  infbrmcrl  by  Mr.  Davis,  used  agfainst  the  acccs- 
pnrius  befl^rc  the  fiict,  in  ("oin.  r.  Knapp,  9  I'iik.  49fi,  as  principal,  "'in  tlie  horrid  and  rno»t 
•li..ijolical  niuidcr  of  Josejih  White;  upon  whieh  J.  J.  lvnai)p  was  tried,  convicted  and 
executed.  'I'lio  words  used  in  the  Kii^rljsh  precedents  arc  '  feloniously  and  Mialicioiisly 
counsel  liim,'  &c.,  not  using  the  allegation  in  tiie  fbllowinj^  precedent,  '  feloniously,  wil- 
fully and  of  their  malice  afbretlion<,'!it!'  'J'his  indictment  was  drawn  by  the  attorney. gene- 
ral of  Massachusetts;"  Davis'  Precedents  41. 

As  there  has  heen  no  ehanfre  made  by  the  Revised  Statute  in  the  l.mguage  of  the  luvr 
under  which  the  above  form  was  drawn,  it  may  be  pretsumtd  to  be  still  yood. 

(i)  2  Stark.  C.  P.  456. 


i 


ACCESSARIES.  37 

Against  an  accessary  to  a  burglary,  after  the  fact. 

[Draw  the  indictment  against  the  principal  according  to  the 
precedents  in  burglary  {see  '•'•  Burglary, '''  post),  and  then  proceed):^' 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  A.  B.  of  in  the  county  of  lahourer,  afterwards, 
to  wit,  on  at  well  knowing  the  said  C.  D.  to  have  done 
and  committed  the  felony  and  burglary  aforesaid,  in  manner  and 
form  aforesaid,  him  the  said  C.  D.  did  then  and  there  knowingly 
liarbour,  conceal,  maintain  and  assist.(y)  [Conclude  as  in  book  1, 
chap.  3). 

Against  -principal  and  accessaries  before  the  fact,  in  burglary. 

{Draio  the  indictment  against  the  principal  according  to  the 
precedents  in  burglary,  [see  '■'■Burglary,^'' post),  and  then  proceed)'. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  A.  B.,  of  in  the  county  of  labourer,  before  the 
committing  of  the  felony  and  burglary  aforesaid,  in  manner  aforesaid, 
to  wit,  on  the  day  of  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  at  aforesaid,  in  the  county  aforesaid, 
was  accessary  thereto  before  the  fact,  and  did,  feloniously  and  mali- 
ciously incite,  move,  counsel,  hire  and  procure,  aid,  abet  and  com- 
mand the  said  C.  D.  to  do  and  conuTiit  the  said  felony  and  burglary, 
in  manner  and  form  aforesaid. (A^)    [Conclude  as  in  book  1,  chap.  3). 

Accessary  before  the  fact  to  suicide.  First  count  against  suicide  as 
principal  in  the  first  degree,  and  against  party  aiding  him  as  princi- 
pal in  the  second  degree. 

The  jurors,  &c.,  upon  their  oaths  present,  tliat  C.  D.  of 
labourer,  on  the  day  of  now  last  past,  at 

aforesaid,  in  the  county  of  aforesaid,  in  and  upon  himself 

did  make  an  assault ;  and  that  he  the  said  C.  D.,  with  a  rope,  about 
the  neck  of  himself,  the  said  C.  D.,  then  and  there  feloniously,  wil- 
fully and  of  his  malice  aforethought,  did  put,  fasten  and  bind  ;  and 
that  he  the  said  C.  D.,  with  the  said  rope,  about  the  neck  of  him  the 
said  C.  D.,  then  as  aforesaid  put,  fastened  and  bound,  himself  the 
said  C.  D.  then  and  there  feloniously,  wilfully  and  of  his  malice 
aforethought,  did  choke  and  strangle;  of  which  said  choking  and 
strangling  the  said  C.  D.  then  and  there  instantly  died. 

And  so  the  inquest  aforesaid,  on  their  oath  aforesaid,  do  say,  that 
the  said  C.  D.  in  manner  and  form  aforesaid,  himself,  the  said  C.  D., 
feloniously,  wilfully  and  of  his  malice  aforethought,  did  kill  and 
murder,  against  the  peace  of  said  commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided.  And  that 
one  E.  F.,  late  of  said  labourer,  before  the  said  self-murder, 

by  the  aforesaid  C.  D.  in  manner  and  form  aforesaid  done  and  com- 
mitted, that  is  to  say,  on  the  day  and  year  aforesaid,  him  the  aforesaid 


ij)  Cro.  r.  p.  125.  {k)  3  Ch.  C.  L.  1 101  ;  Cro.  C.  P.  124. 

4 


38  ACCESSARIES. 

C.  D.,  at  aforesaid,  in  tlie  County  of  aforesaid,  to  do 

and  commit  the  felony  and  murder  of  himself  aforesaid,  in  manner 
and  lorm  aforesaid,  maUciously,  feloniously,  voluntarily  and  of  his 
malice  aforethonglit,  did  stir  up,  move,  abet,  counsel  and  procure, 
against  the  peace  of  the  said  commonwealth,  and  contrary  to  the 
lorm  of  the  statute  in  such  case  made  and  provided. 

Second  count  against  defendant  for  murdering  suicide. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  pre- 
sent, that  the  said  E.  F.,  on  the  day  and  year  aforesaid,  at 
aforesaid,  in  the  county  aforesaid,  in  and  upon  the  said  C.  D.  did 
make  an  assault ;  and  that  he,  tiie  said  E.  F.,  a  rope  about  the 
neck  of  tlie  said  C.  D.,  then  and  there  feloniously  and  of  his 
malice  aforethought,  did  put,  fasten  and  bind  ;  and  that  he,  the  said 
E.  F.,  with  the  said  rope  about  the  neck  of  him  the  said  C.  D.,  then 
as  aforesaid  put,  fastened  and  bound,  him  the  said  C.  D.,  then  and 
there  feloniously,  wilfully  and  of  his  malice  aforethought,  did  choke 
and  strangle  ;  of  wliich  clioking  and  strangling  he  the  said  C.  D.  then 
and  there  instantly  died  And  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  E.  F.,in  manner  and  form  afore- 
said, him  the  said  C.  D.  feloniously,  wilfully  and  of  his  malice  afore- 
thought, did  kill  and  murder;  against  the  peace  of  the  said  common- 
wealth, and  contrary  to  the  form  of  tlie  statute  in  such  case  made  and 
provided.(/) 


(Z)  Tliis  is  in  general  consli  action  the  same  with  the  indictment  in  Com.  v.  Bowen,  15 
Mass.  3.57.  The  deceased,  a  convict  in  the  Northampton  prison,  being  nnder  sentence  ot' 
death,  th«  defendant,  wlio  was  in  an  adjoining  apartment,  advised  iiini  tlie  day  before  the 
intended  execution  to  make  away  with  himself,  and  thereby  to  elude  the  penalties  of  the 
law.  The  advice  was  taken,  and  the  exix!riment  being  successful,  the  deiendant  was 
indicted  in  the  first  count,  as  a  principal  in  the  second  degree  in  tire  homicide,  and  in  the 
second  count,  as  its  sole  cause.  The  jury  returned  a  verdict  of  not  guilty,  but  in  the 
charge  of  the  chief  justice  no  doubt  is  expressed  but  that  both  the  counts  were  proper. 
The  law  was  declared  to  bo,  that  if  the  |)ersuasions  of  the  defendant  were  the  cause  of 
the  death  of  the  deceased,  the  former  Was  as  much  responsible  for  it  as  if  he  had  himself 
struck  the  blow. 

The  inclination  in  England  is  to  declare  the  law  in  the  same  way,  and  so  it  was  ex- 
pressed in  Wh.  C.  L.  2U,  though  of  late  the  doctrine  has  been  qualified  by  the  position 
that  at  common  law  there  can  be  no  accessaries  to  suicide.  Thus  in  li.  v.  Leddington,  9 
C.  &  P,  71i,  where  the  indictment  charged  that  Ann  Burton  murdered  herself  by  poison, 
ing  herself  with  arsenic,  and  that  the  prisoner  did  iiloniously  incite  and  procure  the  said 
Ann  Burton  the  said  felony  and  nmrder  to  do  and  commit,  Alderson  B.,  said  to  the  jury  : 
"  You  have  no  authority  to  inijuire  into  this  charge;  this  is  a  case  of  j-uicidc^,  and  the  pi  i. 
soner  is  charged  with  inciting  it;  that  is  a  case  that  by  law  we  cannot  try.  'J'he  prisoner 
must  be  acquitted."  In  the  Ciisc  oi'  R.  v.  Russell,  1  M.  C.  C.  35C,  it  wts  held  by  the  fifteen 
judges  Ihiit  an  accessary  betore  the  fact  to  the  crime  of  self-murder  was  not  triable  at 
common  law,  because  the  principal  could  not  be  tried,  and  that  he  is  not  now  triable  for  a 
substantive  felony  under  the  .stat.  7  Geo.  IV.  c.  G4,  s.  9,  as  that  statute  was  to  be  con- 
sidered as  extending  to  those  persons  only  who  before  the  statute  were  liable  either  with 
or  after  the  ]iriiici|);il,  and  not  to  make  those  liable  who  before  could  never  have  been  tried. 
And  it  was  also  lield,  that  if  a  woman  takes  poison  with  int(nt  to  procure  a  miscarriage 
and  dies  of  it,  she  is  guilty  of  sell-murder,  whelher  she  was  quick  with  child  or  not,  and 
that  the  person  who  furni.shed  her  with  the  p(>ison  for  that  purpose  \\\\\,  if  ab^^ent  wlnjn 
the  took  it,  he  an  accessary  before  the  fact  only,  and  as  such  not  ])uiiishable.  Wheic, 
iiowever,  the  surviving  parly  was  actually  aiding  in  tlie  suiciile,  he  becimies  a  principal 
therein,  and  as  such  is  clearly  indictable  for  murder;  R.  ji.  Ityson,  R.  <fe  R.  523;  R.  r. 
Allison,  8  C.  &,  P.  523;  R.  v.  Russell,  I  Mood.  C.  C.35C;  Starkie  C.P.  420;  and  case  in 
text. 


ACCESSARIES.  39 

Against  a  defendant  in  murder  vlio  is  an  accessary  before  the  fact  in 
one  county  to  a  murder  committed  in  anotlier.{m) 

That  Robert  Carliel,  late,  &c,,  and  James  Irweng,  late,  &c.,  as,  &c., 
at,  &c.,  not  having  the  fear  of  God  before  tlieir  eyes,  but  being  moved 
and  seduced  by  the  instigation  of  the  devil,  with  force  and  arms,  at 
aforesaid,  in  the  county  aforesaid,  in  and  upon  one  John  Tur- 
ner, in  the  peace  of  God  and  our  said  lord  the  king,  then  and  there 
being,  feloniously  and  of  their  malice  aforethought,  did  make  ati 
assault,  and  that  the  aforesaid  Robert  Carliel,  with  a  certain  gun, 
called  a  pistol,  of  the  value  of  five  shillnigs,  then  and  there  charged 
with  gunpowder  and  one  leaden  bullet,  which  gun  the  said  Robert 
Carliel  in  his  right  hand  then  and  there  had  and  held  in  and  upoti 
ihe  aforesaid  John  Turner,  then  and  there  feloniously,  voluntarily 
and  of  his  malice  aforethought,  did  shoot  off  and  discharge,  and  the 
aforesaid  Robert  Carliel,  with  the  leaden  bullet  aforesaid,  from  the 
gun  aforesaid  then  and  there  sent  out,  the  aforesaid  Jt:)hn  Turner,  in 
and  upon  the  left  part  of  the  breast  of  him  the  said  John  Turner,  then 
and  there  feloniously  struck,  giving  to  the  said  John  Turner  theu  and 
there,  with  a  leaden  bullet  as  aforesaid,  near  the  left  pap  of  him  the 
said  John  Turner,  one  mortal  wound  of  the  breadth  of  half  an  inch 
and  depth  of  five  inches,  of  which  mortal  wound  the  aforesaid  John 
Turner  at  London  aforesaid,  in  the  parish  and  ward  aforesaid, 
instantly  died ;  and  that  James  Irweng  feloniously,  wilfully  and  of 
his  malice  aforethought,  then  and  there  was  present,  aiding,  assisting, 
abetting,  comforting  and  maintaining  the  aforesaid  Robert  Carliel  to 
do  and  commit  the  ielony  and  murder  aforesaid,  in  form  aforesaid;  and 
so  the  aforesaid  Robert  Carliel  and  James  Irweng,  him  the  aforesaid 
John  Turner,  at  London  aforesaid,  in  the  parish  and  ward  aforesaid, 
in  manner  and  form  aforesaid,  feloniously,  voluntarily  and  of  their 
atorethought  malice,  killed  and  murdered;  against  the  peace  of  our 
lord  the  now  king,  his  crown  and  dignity;  and  that  one  Robert 
Creighton,  late  of  the  parish  of  St.  Margaret,  in  Westminster,  in  the 
County  of  Middlesex,  Esq.,  not  having  the  fear  of  God  before  his 
eyes,  but  being  seduced  by  the  instigation  of  the  devil,  before  the 
felony  and  murder  aforesaid,  by  the  aforesaid  Robert  Carliel  and 
James  Irweng,  in  .manner  and  form  aforesaid  done  and  committed, 
that  is  to  say,  on  the  tenth  day  of  May,  in  the  tenth  year  of  the  reign 
of  our  lord  James,  by  the  grace  of  God,  &c.,  the  aforesaid  Robert 
Carliel  at  the  aforesaid  parish  of  St.  Margaret,  in  Westminster,  in  the 
County  of  Middlesex  aforesaid, (;i)  to  do  and  commit  the  felony  and 

(m)  This,  we  are  infprmcd  by  Mr.  Starkie,  was  the  indictment  used  against  Lord  San- 
char,  upon  which  he  was  convicted  and  executed.  A  full  account  of  the  proceeding's  upon 
that  occasion  appears  in  9  Co.  117.  It  is  observable,  that  tlioujrh  the  indictment  is  founded 
upon  the  stat.  2  and  3  E.  6,  c.  24,  it  does  not  conclude  against  the  form  of  the  statute, 
nor  does  this  appear  to  be  necessary,  for  thoug-h,  before  the  statute,  an  accessary  in  one 
county  to  a  murder  in  another,  could  not  have  been  indicted  in  either,  that  was  for  want 
of  the  authority  in  the  jurors  to  inquire,  and  the  statute  merely  remedies  the  defect  with- 
out making  any  alteraiion  cither  in  the  nature  of  the  otfence  or  in  the  measure  of  punish- 
ment, which  remained  as  at  common  law.  It  was  deemed  necessary,  says  Air.  Starkie, 
expressly  to  allege  the  perpetration  of  the  murder  in  tlie  true  county. 

in)  By  stat.  4  and  5  Ph.  &  M.  c.  4,  all  [)ersons  that  shall  maliciously  command,  Jiire, 
or  counsel  any  person  to  commit  petit  treason,  wilful  muider,  &,c.,  every  sucii  olFeuder 


40  ACCESSARIES. 

murder  aforesaid,  in  manner  and  form  aforesaid,  maliciously,  felo- 
niously, voluntarily  and  of  his  aforethought  malice,  did  stir  up,  move, 
abet,  counsel  and  procure,  against  the  peace  of  our  said  lord  the 
king  that  now  is,  his  crown  and  dignity. 


[^For  other  forms  of  indictments  against  accessaries  in  hojnicide,  see 
post,  chap.  "  Murder"'\. 


Larceny.     Principal  and  accessary  before  the  fact. 

That  A.  B.  of  in  the  county  of  labourer,  on  the 

day  of  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

at  ,  one  silver  cup,  of  the  value  of  ten  dollars,  of  the 

goods  and  chattels  of  one  C.  D.,  then  and  there  iu  the  possession  of 
the  said  C.  D.  being  found,  feloniously  did  steal,  take  and  carry  away, 
against,  &c. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  E.  F.  late  of  in  the  county  of  labourer,  be- 

fore the  committing  of  the  felony  and  larceny  aforesaid,  to  wit,  on 
the  day  of  in  the  year  last  aforesaid,  at  aforesaid, 

in  the  county  aforesaid,  did  knowingly  and  feloniously  incite,  move, 
procure,  aid,  abet,  counsel,  hire  and  command  the  said  A.  B.  to  do 
and  commit  the  said  felony  and  larceny,  in  manner  and  form  afore- 
said, against,  &c.(o). 

Against  accessary  for  receiving  stolen  goods. 

{State  the  offence  against  the  principal  felon,  as  above,  and  then 
proceed  as  follows)  : 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  A.  B.  of  in  the  county  of  labourer,  after- 

wards, to  wit,  on  the  day  of  now  last  past,  at  B.  afore- 

said, in  the  county  aforesaid,  the  goods  and  chattels  aforesaid,  to 
wit,  one  pair  of  shoes,  of  the  value  of  two  dollars  {here  state  all  the 
articles  found  upon  the  accessary,  their  value,  S)-c.)  so  as  aforesaid 
feloniously  stolen,  taken  and  carried  away,  by  the  said  A.  B,,  iu 
manner  aforesaid,  feloniously  did  receive  and  have,  and  did  then  and 
there  feloniously  aid  in  concealing  the  same;  he  the  said  C.  D.  then 
and  there  well  knowing  the  same  goods  and  chattels  to  have  been 
feloniously  stolen,  taken  and  carried  uwuy  as  aforesaid,  against,  &:c.(//) 


I)oiniT  attainted  or  who  sliall  stand  mute,  &c.,  or  cliallcnjre  peremptorily  above  twenty,  &c., 
Khali  be  excluded  from  tlie  hetiefit  oCclerj^y.  'rhoujrh  it  is  i)ro])er  to  introduce  tiic  words  of 
tlie  Htatulc  into  the  indictment,  yet  an  itidictnicnt  lias  been  holdcn  sutlicient  wiiich  wholly 
drops  the  words  of  the  statute;  Starkie  C  P.  4i21. 

(0)  '2  Stark.  C.  P.;  Cro.  C.  V,.  121 ;  Davis'  Prc'C.  36. 

(/j)  2  Stark.  (;.  P.  'I.'j7;  this  form  is  {rjvun  by  Mr.  Davis,  as  jrood  under  the  Massachu- 
setts statute;  Precedents  38.  When  the  principal  has  been  convicted  in  one  county, 
and  the  stolen  jjoods  received  in  another,  the  form  will  he  the  same  as  in  this  prcci dent; 
the  conviction  of  the  |>riricipal  being  alleged  conformably  to  the  record  in  the  county 
where  it  was  had. 


ACCESSARIES.  41 

Again  sl  accessary  for  receiving  the  principal  felon. 

{State  the  offence  against  the  principal  felon,  as  in  the  next 
preceding  jjrecedeiit,  and  theJi  proceed  as  follows) : 

And  tlie  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  C.  D.  of  in  the   county  of  yeoman,  well 

knowing  the  said  A.  B.  to  have  done  and  committed  the  felony  and 
larceny  aforesaid,  in  manner  and  form  aforesaid,  afterwards,  to  wit, 
on  the  day  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  at  B.  aforesaid,  in  the  county  aforesaid,  him  the 

said  A,  B.  did  then  and  there  knowingly  and  feloniously  receive, 
liarbour,  conceal  and  maintain,  in  the  larceny  and  felony  aforesaid, 
against,  &c.(y) 

[T%e  onlj/  variation  between  indictments  against  accessaries  to  arson, 
mayhem,  robbery  and  rape,  and  the  form  given  in  the  text,  is  that  after 
the  word  felony,  the  phrase,  *'  and  arson,''''  "  and  mayhem^''  "  and  rol>- 
bery,"  ^^  and  rape^''  must  be  inserted  as  the  case  may  require.  For  ac- 
cessaries after  the  fact,  to  larceny,  see  "Receiving  Stolen  Goods''^. 

(?:  Davis'  Precedents  367 ;  2  Stark.  C.  P.  456 ;  Cro.  C.  C.  124. 


BOOK  THE   THIRD 


OFFENCES   AGAINST  THE  PERSON. 


CHAPTER  I. 


HOMICIDE. 


That  A.  B.,  late  of  the  parish  of  C,  in  the  county  of  P.,  labourer, 
not  having  the  fear  of  God  before  his  eyes,  but  being  moved  and  se- 
duced by  the  instigation  of  the  devil, («)  on,  &c.,  with  force  and  arms, 
[b)  at  the  parish  aforesaid,  in  the  county  aforesaid. (c)  in  and  upon 
one  E.  F.,{d)  in  the  peace  of  God  and  of  the  said  commonwealth 
then  and  there  being,(6>)  feloniously,  wilfully  and  of  his  malice  afore- 
thought,(/)  did  make  an  assault;  and  that  the  said  A.  B.,  with  a  cer- 
tain knife(^'-)  ofithe  v^Jj^of  sixpence, (A)  which  he  the  said  A.  B.  in 
his  right  hand^fiaSr  and  held,(/)  him,{J)  the  said  E.  F.,  in  and  upon 
the  left  side  of  the  breast  of  him  the  said  E.  F.,{k)  then  and  there(/) 
feloniously,  wilfully  and  of  his  malice  aforethought, (w)  did  strike(/i) 
and  thrust,  giving  to  the  said  E.  F.,  then  and  there,  with  the  knife 
aforesaid, («)  in  and  upon  the  said  left  side  of  the  breast  of  him(/^)  the 
said  E.  F.,  one  mortal  wound  of  tlie  breadth  of  three  inches,  and  of 
the  depth  of  six  inches ;((;)  of  which  said  mortal  wound  the  said  E. 
F.,  from  the  said  third  day  of  August,  in  the  year  aforesaid,  until  the 
fifteenth  day  of  tlie  same  month  of  August,  in  the  year  albrcsaid,  at 
the  parish  aforesaid,  did  languish,  and  languishing  did  live  ;(r)  on 
which  said  fifteenth  day  of  August,  in  the  year  aforesaid,  the  said  E. 
F.,  at  the  parish  aforesaid,  in  the  county  aibresaid,  died  ;(.9)  and  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  that  the  said 
A.  li.,  him  llie  said  E.  F.,  in  ujanner  and  form  aforesaid,  feloniously, 
willully  and  of  his  malice  aforethought,  did  kill  and  murder.(/)  (Con- 
clude as  in  book  1,  chap.  3).(?<) 

(a)  Tlicsc  words  arc  wholly  unnecessary.  If  included  tluy  arc  rejected  as  surplusage; 
if  cAciuded  the  want  of  tlieiii  is  not  tlie  subject  of  txeeption. 

{b)  "Force  and  urni.s."    'I'lio  use  of  tlicbo  words,  as  has  been  before  shown,  is  unnecca- 


HOMICIDE GEXERAL   REQUISITES  OF  IXDICTMEXT.  43 

sary ;  see  ante,  p.  9  ;  and  in  one  instance  the  omission  of  tliem  in  an  indictment  for  mur- 
der has  been  expressly  sanctioned;  Terr.  v.  M'Furlan,  I  Mart.  16. 

(c)  Where  the  indictment  chargfcd  that  the  defendant,  late  of  B.  county,  "at  the  coimty 
aforesaid,"  iV-c,  it  was  held  that  this  was  sufficient  to  point  out  the  place  where  the  offence 
was  committed  ;  State  v.  Lamon,  3  Hawks  175 ;  sec  ante,  p.  8. 

(</)  In  what  way  the  name  of  the  party  injured  must  be  set  forth,  has  been  already  dis- 
cussed, ante,  p.  6,  et  seq. 

(r)  These  words  do  not  need  proof,  and  may  be  omitted  without  prejudice;  Arch.  C.  P. 
10th  ed.  407. 

(/)  Tliese  words  have  always  been  held  necessary;  Wh.  C.  L.  271  ;  and  if  the  qiialifi. 
cation  of  "malice  aforethought"  be  omitted,  the  offence  drops  to  manslaughter.  In  Arkan- 
sas, however,  it  would  seem  a  conviction  of  murder  can  rest  on  an  indictment  where  malice 
aforethought  is  not  charged ;  Anderson  v.  State,  5  Pike  445. 

{g)  The  common  law  rule  in  pleading  the  instrument  of  death  is  that  where  the  instru- 
ment laid  and  the  instrument  proved  are  of  the  same  nature  and  character,  there  is  no 
variance;  where  they  are  of  apposite  nature  and  character,  tiie  contrary.  Thus  evidence 
of  a  dagger  will  support  the  averment  of  a  knife,  but  evidence  of  a  knife  will  not  support 
the  averment  of  a  pistol.  A  very  happy  illustration  of  tiiis  distinction  is  found  in  Com.  v. 
Haines,  6  Pa.  L.  J.  232.  The  defendant  was  charged  with  having  erected  a  stuffed  Paddy 
with  intent  to  libel  tiic  Catholic  Iris!) ;  and  he  endeavoured  to  defend  himself  by  proof  that 
the  device  was  a  stutied  S/ielah,  and  the  ol)ject  was  to  annoy  the  Frolestnnt  Irish.  The 
instructions  of  the  court  were  invoked  as  to  whether  there  was  a  variance;  and  Gibson  J. 
said  that  if  there  was  a  mere  averment  of  a  Paddy,  and  evidence  of  a  Shelali,  tlie  object 
and  character  of  the  figures  being  similar,  there  was  no  variance ;  but  that  if  on  the  con- 
trary they  were  devices^ of  an  antagonistic  character,  the  indictment  could  not  be  sup- 
ported. Where  the  method  of  operation  is  the  same  though  the  instrument  is  different, 
no  variance  exists:  where  tiie  former  is  not  the  case,  the  rule  is  otherwise.  The  same 
reasoning  applies  to  indictments  for  homicide.  Where  the  species  of  death  would  be  dif- 
ferent, as  if  the  indictment  allege  a  stabbing  or  shooting,  and  the  evidence  prove  a  poison- 
ing or  starving,  the  variance  is  fatal;  R.  v.  Briggs,  1  Mood.  C.  C.  318;  and  the  same  if 
the  indictment  state  a  poisoning,  and  the  evidence  prove  a  starving.  Thus  where  an 
indictment  stated  that  the  defendant  assaulted  the  deceased,  and  struck  and  beat  him 
upon  the  head,  and  thereby  gave  him  divers  mortal  blows  and  bruises,  of  which  he  died, 
and  it  apieared  in  evidence  that  the  death  was  by  the  deceased  falling  on  the  ground,  in 
consequence  of  a  blow  on  the  head  received  from  the  defendant;  it  was  holden  that  the 
cause  of  the  death  was  not  properly  stated  ;  R.  ».  Thompson,  1  Mood.  C.  C.  13^.  But  if 
it  be  proved  that  the  deceased  was  killed  by  any  other  instrument,  as  with  a  dagger, 
sword,  styf}',  bill  or  the  like,  capable  of  producing  the  same  kind  of  death  as  the  instru- 
ment stated  in  the  indictment,  the  variance  will  not  be  material;  R.  v.  Mackally,  9  Co.  67 
a;  Gilb.  Ev.  231  ;  R.  v.  Briggs,  1  Mood.  C.  C.  318.  So  if  the  indictment  allege  a  death 
by  one  kind  of  poison,  proof  of  a  death  by  another  kind  of  poison  will  support  the  indict- 
ment; ib.,  and  see  2  Hale  185,  115;  2  Hawk.  c.  23,  s.  84.  An  indictment  havino- 
charged  that  the  prisoner,  with  both  her  hands  about  the  neck  of  the  deceased,  the  neck 
and  throat  of  the  deceased  did  squeeze  and  press,  and  by  such  squeezinsT,  &.C.,  did  suffocate 
and  strangle  the  deceased  ;  and  the  evidence  being  that  the  prisoner  suffocated  the  deceased 
by  placing  one  hand  on  his  mouth  and  the  other  on  the  back  of  his  head  ;  Patteson  J.  held 
that  it  was  sufBcient  if  the  death  was  caused  by  suffocation,  and  that  the  evidence  sup. 
ported  the  indictment;  R.  ».  Culkin,  5  C.  &,  P.  121.  And  in  another  case  the  offence 
being  charged  to  have  been  committed  with  a  certain  sharp  instrument,  and  the  evidence 
was  that  the  wound  was  partly  torn  and  partly  cut,  and  was  done  with  an  instrument  not 
sharp,  Parke  B.  held  the  indictment  proved,  and  said  the  degree  of  sharpness  was  immate- 
rial;  R.  V.  Grounsell,  7  C.  &  P.  788.  And  where  an  indictment  for  the  murder  of  a  bas- 
tard child  stated  that  the  defendant  forced  and  thrust  moss  and  dirt  into  its  throat,  mouth 
and  nose,  and  that  by  forcing  and  thrusting  the  moss  and  dirt  into  the  throat,  mouth  and 
nose  of  the  child,  the  child  was  choked,  &,c.,  and  it  appeared  that  the  child  was  not  im- 
mediately suffocated  by  the  moss  and  dirt,  but  that  the  moss  and  dirt  caused  an  injury 
and  inflammation  in  the  throat,  w-hich  closed  the  passage  to  the  lungs  and  stomach,  of 
which  the  child  died;  it  was  declared  that  the  evidence  supported  the  indictment,  and  that 
it  was  sulHcieiit  to  state  the  proximate  cause  of  the  death,  without  stating  the  intermediate 
process  resulting  from  that  proximate  cause;  R.  v.  Tye,  R.  &,  R.  315.  Where  the  prison- 
er was  indiet(d  for  cutting  the  throat  of  the  deceased,  and  a  surgeon  proved  that  what 
was  technically  called  the  throat  was  not  cut,  as  the  wound  did  not  extend  so  far  round 
the  neck,  Patteson  J.  held  that  the  indictment  must  be  understood  to  mean  what  is  com- 
monly called  the  throat;  R.  v.  Edwards,  fi  C.  «fc  P.  401.  Where  the  indictment  alleged 
that  tlie  defindant  suffocated  the  deceased  by  placing  her  hind  on  the  mouth  of  the  de- 
ceased, and  the  jury  found  that  the  death  was  caused  by  suffocation,  but  could  not  say 


44  OFFEXCES   AGAINST   THE   PERSON. 

linw  it  was  occasioned,  Denrnan  C.  J.,  held  the  indictment  proved  ;  R.  v  Waters,  7  C.  &  P. 
S.50.  But  under  an  indictment  for  shootinu-  witli  a  |)ist.)l  loaded  with  eun|)ovvder  and  a  lead- 
en bullet,  it  appeared  that  there  was  no  bullet  in  the  room  where  the  aet  was  done,  and  no 
bullet  in  the  wound;  and  it  was  proved  that  the  wound  might  have  been  occasioned  by  the 
waddinor  of  the  pistol.  Jiolland  B.,  Park  and  Parke  Js.,  held  the  indictment  not  proved. 
See  R.  V.  Hughes,  5  C.  &.  P.  1^6.  The  same  principle  was  applied  where  an  indictment 
charged  that  the  defendant  struck  the  deceased  with  a  brick,  and  it  appealed  that  he 
knocked  the  deceased  down  with  his  fist,  and  that  the  deceased  fell  upon  a  brick  which 
caused  his  death;  R.  v.  Ivell}',  I  iVIood.  C.  C  113.  In  New  York  a  far  more  liberal  rule 
has  been  announced,  it  having  been  substantially  held  that  the  use  of  a  pistol  might  be 
proved  under  an  indictment  charging  the  weapon  to  have  been  a  knife ;  People  v.  Colt, 
3  Hill  432. 

(A)  The  allegation  of  value  is  now  immaterial,  and  need  not  be  proved.  In  England, 
where  deodands  are  still  recognised,  it  may  be  necessary  to  introduce  it;  though  the  same 
object  does  not  exist  in  this  country.  In  the  late  edition  of  Hale's  Pleas  of  the  Crown,  by 
Messrs.  Stokes  and  Ingersoll,  i.  424,  will  be  found  an  interesting  and- curious  exposition  of 
the  law  of  deoilands,  and  of  how  far  it  may  be  made  to  press  on  this  point. 

(i)  Though  the  hand  in  which  the  instrument  was  held  is  set  out  in  the  old  forms,  it  is 
clearly  not  necessary  to  prove  it;  Arch.  C  P.  10th  ed.  407. 

(j)  The  "him"  which  is  here  inserted  is  not  usually  introduced;  and  in  several  cases 
counts  have  been  sustained  without  it,  where  the  express  exception  was  taken  ;  Com.  v. 
White,  6  Binn.  183.  See  Wli.  C.  L.  270-71,  a.nd  postea.  Perhaps  its  insertion,  however, 
leads  to  greater  clearness. 

(fc)  It  must  be  averred  in  what  part  of  the  body  the  deceased  was  wounded;  and  there- 
fore, if  it  be  said  that  the  wou)id  was  on  the  arm,  hand  or  side,  without  saying  whether 
the  right  or  the  left,  it  is  bad  ;  2  Hale  185.  If^  however,  the  wound  be  stated  to  be  on  the 
lefl  side,  and  proved  to  be  on  the  right,  or  alleged  to  be  on  one  part  of  the  body,  and  proved 
to  be  on  another,  the  variance  is  immateriul;  2  Hale  186. 

(/)  The  time  need  not  be  formiUy  repeated,  "then  and  there"  carries  the  averment 
back  to  the  original  date;  Stout  v.  Com.,  11  S.  &  R.  177.  See  ante,  p.  10.  Even  if  the 
"then  and  there"  be  omitted,  it  would  seem  that  the  court  will  still  give  judgment  on 
the  indictment  if  the  grammatical  construction  be  such  as  to  apply  the  time  at  the 
outset  to  the  subsequent  allegations;  State  v.  Cherry,  3  Murph.  7.  But  where  two 
distinct  periods  have  been  averred,  the  statement  "then  and  there"  is  not  enough;  one 
particular  time  should  be  averred  ;  Storrs  v.  State,  3  Miss.  45. 

(//i)  The  re|)etition  of  this  phrase  in  this  place  has  been  held  to  be  unnecessary  in 
North  Carolina;  State  v.  Owen,  I  Murph.  452,  though  it  is  much  safer  to  introduce  it; 
Resp  V.  Honeyman,  2  Dall.  228. 

(n)  Wherever  death  is  caused  by  physical  violence,  it  is  essential  to  the  indictment  that 
it  should  allege  that  the  defendant  struck  the  deceased;  see  5  Co.  122  a;  2  Hale  184;  2 
Hawk.  c.  23,  s.  82;  and  it  must  also  be  proved,  though  in  Virginia  it  has  been  ruled  that 
where  the  instrument  was  a  d.-igger,  "slab,  stick  and  thrust,"  would  be  held  equivalent 
to  strike;  (iibson  v.  Com.,  2  Va.  teases  111.  It  is  not  necessary,  however,  to  prove  that 
he  struck  him  with  the  i)artirular  instrument  mentioned  in  the  indictment;  and  therefore, 
although  the  indictment  allege  that  the  defendant  did  strike  and  thrust,  [)roof  of  a  striking 
which  [)roduecd  contused  wounds  only  would  maintain  the  indictment;  Arch.  C.  P.  10th 
cd.  486. 

(o)  The  indietment  must  distinctly  state  that  the  blow  was  struck  by  the  instrument 
alleged.  An  indictment,  however,  charging  "that  A.  B.  with  a  certain  stick,  &,c.,  in  and 
upon  the  head  and  fiice  of  C.  D.,  then  and  there  did  strike  and  beat,  giving  to  the  said 
C.  1).  then  and  there,  with  the  stick  aforesnid,  in  and  upon  the  head  and  faci;  of  the  said 
C  D.,  several  mortal  wounds,  of  which  said  several  mortal  wounds  the  said  C'.  D.  instantly 
died,"  is  good  ;  tor  there  is  in  the  first  clause  a  direct  allegation  of  a  stroke,  and  the  par- 
ticiple givinrr,  nnd  the  words  thrn  and  t/ifre,  connect  the  (illrgation  with  the  mortal  wound 
in  the  second  clause;  Gibson  v.  Com.,  2  Va.  (^ases  111.  WJicre  the  allegation  was,  "that 
the  prisoner  in  and  upon  M.  F.,  &-c.,  feloniously,  (fee,  did  make  an  assault  with  a  cer- 
tain gun,  oiled  a  rifle  gun,  &c.,  then  and  there  charged  with  gunjjowder  and  two  leaden 
bullets,  which  said  gun  he,  tfec,  had  and  held,  at  and  against  the  said  M.  F.,  then,  &,c., 
feloniously,  <fec.,  did  shoot  off  and  discharge,  and  that  the;  said  M.  F,  with  the  leaden  bul- 
lets af(:)resaid,  by  means  of  shooting  oil'  and  discharging  the  s.iid  gun,  so  loaded,  to,  at 
and  against  the  said  M.  F.,  as  afliresaid,  did,  «fec.,  felonif)Uslv,  ifec.,  strike,  penetrate  and 
wound  the  said  M.  F.,  in  and  upon  the  lefl  side  of  the  said  M.  F.,  <fec.,  giving  to  her  the 
said  M.  F.,  &c.,  with  the  leaden  bullets  aforesaid,  by  means  of  shooting  off  and-diseharging 
the  said  gun,  so  lo.idcd,  to,  at  and  against  the  said  M.  F.,  and  by  such  stricken,  &,c.,  the 
Haid  M.  F.,  as  aforesaid,  one  mortal  wound  in  and  upon  the  left  side  of  the  said  iVI.  F'.," 
&-C. ;  on    a   motion  to  arrest  the  judgment,  on  the  ground  that  there  was  no  suflicicut 


HOMICIDE GENERAL  REQUISITES  OF  INDICTMENT.  45 

avermont  tliat  tlie  g-un  was  sliot  off,  or  that  tlic  contents  were  discharjrod,  it  was  said  that 
the  inference  st-eincd  to  be  one  of  absolute  certainty,  tliat  the  contents  of  the  gan  were 
shot  off  and  disci)ar<red,  for  there  was  nothinir  else  to  which  the  words  "did  shoot  off  and 
discharge"  with  a  g'lin  char[rcd  with  gunpowder  and  leaden  bullets,  could  be  applied  ; 
State  V.  Freeman,  1  Spears  57;  Wh.  (".  L.  270-71. 

ip)  The  insertion  of  tiie  pronoun  "him"  at  this  place,  though  not  usual,  tends  to  help 
the  grammatical  construction. 

(q)  Whatever  may  once  h;ive  been  thought,  it  has  now  been  decided  by  the  English 
judges,  that  it  is  not  necessary  to  state  in  an  indictment  for  murder,  the  length,  breadth 
or  depth  of  the  wf)und;  R.  v.  Mnsley,  1  Mood.  C.  C.  97. 

(r)  The  allegation  of  languishing,  though  proper  in  the  cases  where  tlicre  actually  is 
an  intermission  between  the  blow  and  the  death,  may  be  rejected  as  surplusage  in  all 
others;  Pennsylvania  v.  Bell,  Add.  171,  175. 

(s)  The  dates  here  stated  in  the  indictment  need  not  be  proved  as  laid,  though  an 
indictment  upon  which  it  does  not  appear  that  the  death  happened  within  a  year  and  a 
day  after  the  wound  was  given,  is  fatally  defective ;  because,  when  tiie  death  does  not 
ensue  within  a  year  and  a  day  after  the  wound  is  inflicted,  the  law  presumes  that  it  pro- 
ceeded from  some  other  cause;  State  v.  Onell,  1  Dev.  13!}.  All  that  is  necessary  to  be 
proved,  in  order  to  support  this  part  of  the  indictment  is,  that  the  deceased  died  of  the 
wound  or  wounds  given  him  by  the  defendant,  within  a  year  and  day  after  he  received 
them  ;  as  otherwise  the  case  is  not  made  out,  J  Hawk.  c.  2.'3,  s.  90.  Where  it  appeared  that 
tiie  man's  death  was  caused  by  itnproper  applications  to  the  wound,  and  not  by  the  wound 
itself,  the  defendant  is  r.o',  responsiijle;  though  if  a  man  be  wounded,  and  tlie  wound 
turn  to  a  gangrene  or  fcvtr  for  want  of  proper  applications,  or  from  neglect,  and  the  man 
die  of  the  gangrene  or  '^/cr;  or  if  it  become  fatal  from  the  refusal  of  the  party  to  undergo 
a  surgical  operation,  Reg.  v.  Holland,  2  M.  &  Rob.  3.31  ;  tiiis  is  homicide,  and  murder  or 
not,  according  to  the  circumstances  under  which  the  wound  was  given;  1  Hale  421.  An 
indictment  against  two  defendants,  which  states  the  death  to  be  the  result  of  two  different 
injuries  inflicted  bv  each  of  the  defendants  separately,  on  different  days,  is  bad;  Reg  v. 
Devett,  8('.  &  P.  6.39. 

(/)  In  a  very  late  English  case,  the  second  count  of  the  indictment  charo-cd  J.  O.  B.  that 
lie,  "on  the  27th  of  May,  feloniously,  and  of  his  malice  aforelhouglit,  struck  the  deceased 
with  a  stick,  of  which  said  m9rtal  wound  the  deceased  died  on  the  2Jth  day  of  May ;  that 
T.  R.,  D.  D.,  &LC.,  on  the  day  and  year  first  aforesaid,  at  the  parish  aforesaid,  feloniously 
and  of  their  malice  aforethought,  were  present  aiding  and  abetting  the  said  J.  O.  B.,  the 
Jelony  last  aforesaid  to  do  and  commit ;"  and  concluding  "  the  jurors,  &.C.,  say  tliat  the  said 
J.  O.  B.,  T.  R.,  D.  D.,  &c.,  him  the  deceased  in  manner  and  foi  m  last  aforesaid,  feloniously, 
and  of  their  malice  aforethought,  did  kill  and  murder."  The  third  count  charged  T.  R. 
that  he,  "on  the  27tli  day  of  May,  a  certain  stone  feloniously,  and  of  iiis  malice  afore- 
thought, cast  and  threw,  and  which  said  stone,  so  cast  and  thrown,  struck  deceased,  of 
whicli  nioital  blow  the  deceased  died  on  the  2lHh  of  i\Iay,  and  that  J.  O  B.,  D.  D.,  &.C., 
were  present,  aiding  and  abetting,"  &c.,  as-  in  the  first  count.  It  was  objected — 1st,  tliat 
the  indictment  was  inconsistent,  in  charging  the  principals  in  the  second  degree  with 
committing  the  felony  at  the  time  of  the  stroke,  whereas  it  was  no  felony  till  the  time  of 
the  death  ;  and,  2d,  that  the  general  verdict  of  guilty,  left  it  uncertain  which  was  the 
cause  of  death,  the  stick  or  the  stone,  and  that,  therefore,  no  judgment  could  be  enteied 
on  either.  It  was  held — 1st,  that  the  form  of  the  indictment  was  good  ;  and,  2d,  that  the 
alleged  generality  was  immaterial,  the  mode  of  death  beinj  sulistantially  the  same;  Reg. 
V.  O'Brian,  1  Den.  C.  C.  9.  If  several  be  charged  as  principals,  one  as  principal  per- 
petrator, and  the  others  as  present,  aiding  and  abetting,  it  is  not  material  which  of  them 
be  charged  as  principal  in  the  first  degree,  as  having  given  the  mortal  blow,  for  the  mortal 
injury  done  by  any  one  of  those  present,  is,  in  legal  consideration,  the  injury  of  each  and 
every  one  of  them;  Fosf.  551  ;  I  East  P.  C.  350;  State  v.  Flcy  &  Rochelle,  2  Brev.  338; 
State  V.  Mair,  1  Coxc  453;  sec  ante,  p.  33.  If  the  actual  pcriietrntor  of  a  murder  should 
escape  by  flight,  or  die,  those  present,  abetting  the  commission  of  the  crime,  may  be  in- 
dicted as  principals;  and  tiiough  the  iiidietment  should  state  that  the  mortal  injury  was 
committed  by  him  who  is  absent,  or  no  more,  yet  if  it  be  subsequently  alleged  that  those 
who  are  indicted  were  present  at  the  perpetration  of  the  crime,  and  did  kill  and  murder 
tl\e  deceased,  by  the  mortal  injury  so  done  by  tiie  actual  perpetrator,  it  will  be  sufficient; 
State  V.  Fley  &  Rochelle,  2  Brcv.  338. 

(m)  In  New  York,  though  a  common  law  indictment  for  murder  will  bring  tlie  case 
within  the  statutory  felony,  yet  there  can  be  no  conviction  under  it  unless  the  ofl"  nee 
comes  up  to  the  grade  assigned  by  the  statute  to  a  felonious  and  intentional  homicide; 
People  V.  Enoch,  18  Wend.  159;  see  iiiiti',  p.  12. 

lu  Pennsylvania,  Com.  v.  White,  6  Binn.  1»3,  and  in  North  Carolina,  3  Iredell  117, 


46  OFFEXCES  AGAINST   THE  PERSOJf. 

tlie  statutory  conclusion  is  unnecessary,  and  on  an  indictment  concludinor  as  at  common 
law,  the  statutory  punishment  may  be  inflicted.  In  tlie  latter  case  the  question  was  dis- 
cussed with  great  fulness  by  cliief  justice  Ruffin.  "Tlie  act  of  1777,"  he  said,  "in 
requirinor  pleas  of  the  state  to  be  commenced  in  the  district  wherein  the  offence  was  com- 
mitted, but  followed  the  principle  of  the  common  law,  that  the  cog-nizance  of  crime  is  local. 
It  seems  to  the  court,  that  the  subsequent  act  of  1831,  was  intended  for  the  sole  purpose 
of  modifying-  that  provision  in  particular  cases,  by  conferring  a  jurisdiction  to  try  indict- 
ments for  murder  or  manslaughter,  where  the  whole  offence  was  not  perpetrated  or  was 
not  fully  constituted  within  one  county  or  within  this  state.  It  provides,  Rev.  Stat.  c.  35, 
s.  14,  15,  first,  thai  '  in  all  cases  of  felonious  homicide,  where  the  assault  shall  have  been 
committed  in  one  county  of  this  state  and  the  person  assaulted  shall  die  in  any  other 
county  thereof,  the  offender  shall  and  may  be  indicted  and  punished  for  the  crime  in  the 
county  where  the  assault  was  made;'  and  in  the  next  phice,  that  'in  all  cases  of  felonious 
homicide,  where  the  assault  shall  have  been  committed  in  this  stale,  and  the  person 
assaulted  shall  die  without  the  limits  thereof,  the  offender  shall  and  may  be  indicted  and 
punished  for  the  crime  in  the  county  where  the  assault  was  made,  in  the  same  manner  to 
all  intents  and  purposes  as  if  the  person  assaulted  had  died  within  the  limits  of  this  state,' 
There  is  no  offence  newly  created,  nor  raised  to  a  higher  offence,  nor  an  additional  pun- 
ishment  annexed,  in  any  of  which  cases,  it  is  admitted,  the  indictment  ought  to  conclude 
contra  formam  slatuti.  In  respect  to  a  case,  which  occurs  wholly  in  this  state,  the  act  is 
like  that  of  2  and  3  Ed.  VI.  c.  24,  except  that  the  English  statute  directs  the  trial  to  be  in 
the  county  where  the  person  died.  It  enacts  that  '  where  any  person  shall  be  feloniously 
stricken  in  one  county  and  die  of  the  same  stroke  in  another  county,  an  indictment  thereof^ 
found  by  jurors  of  the  county  where  the  death  shall  happen,  shall  be  as  good  and  effectual 
in  law  as  if  the  stroke  had  been  given  in  the  same  county  where  the  paity  shall  die.' 

"  Mr.  East  says,  this  statute  created  no  new  felony,  but  merely  removed  the  difficulty 
which  existed  in  the  trial;  1  East  C.  L.  365.  Indeed  it  is  obvious  that  it  provides  only  a 
mode  of  trial  for  a  known  existing  offence,  '  where  any  person  shall  be  feloniously 
stricken,'  and  die  thereof,  without  dufining  or  enacting  what  shall  be  such  felonious 
striking,  or  'what  the  punishment,  but  leaving  that  to  the  law  as  it  stood.  The  same 
observations  apply  to  another  statute  connected  with  this  subject,  that  of  2d  Hen.  VIII. 
c.  15,  which  [)r(jvides  for  the  case  of  both  the  stroke  and  death  taking  plice  at  sea.  The 
words  are,  'that  all  murders,  &lc.  committed  in  and  upon  the  sea,  &-c.,  shall  be  inquired, 
tried,  determined  and  judged,  in  such  shires  as  shall  be  limited  by  the  king's  commission, 
as  if  such  offence  had  been  comtnitted  upon  the  land.'  So,  likewise,  of  stat.  2  G.  II.  c. 
21,  which  embraces  the  case  of  the  stroke  in  England,  and  the  death  without  it,  or  vice 
verso,  of  which  the  language  is  'that  an  indictment  theieof,  found  by  the  jurors,  &c., 
shall  be  good  and  effectual,  &c.'  In  prosecutions  authorized  by  those  acts,  the  indict- 
ments, as  it  seems,  have  always  concluded  at  common  law;  Arch.  C.  P.  22,  57,  58; 
Dougherty  C.  C.  295;  Cro.  C.  C.  278,  281 ;  3  Chit.  C.  L.  783.  It  is  true,  offenders  aro 
thereby  punished,  who  could  not  be  punished  before.  But  the  reason  why  they  were  not 
punished  before,  was,  solely,  that  no  court  had  authority  to  try  them.  It  was  not  because 
the  crime  did  not  exist,  for  the  crime,  murder,  is  the  killing  of  any  person  in  the  peace  of 
the  state,  with  malice  aforethought,  and  that  is  constituted  alike  by  killing  with  the  evil 
disposition,  be  the  places  of  assault  and  death  where  they  may.  Language  of  precisely  the 
same  character  is  found  in  our  act.  It  does  not  say  that  killing  a  peison  with  malice, 
when  the  stiokc  is  in  one  county,  and  the  death  in  another  county  or  in  another  state, 
shall  be  deemed  murder,  or  that  on  conviction  the  person  shall  be  deemed  a  felon,  and 
suffer  death  without  the  benefit  of  clergy.  It  docs  not  profess  to  define  'felonious 
homicide,'  or  to  constitute  that  crime  by  any  particular  acts,  but  merely  says,  that,  in 
certain  cases  of  felonious  hoinici/le,  the  offender  may  be  indicted,  and,  of  course,  tried 
and  |)unished  in  the  eotititry  where  the  stroke  was  given;  meaning,  though  it  does  not, 
like  stat.  2  and  3  Ed.  VI.  exjiressly  say  so,  '  in  the  same  manner  as  if  the  death  had  hap- 
pened in  the  same  county  where  the  stroke  was  jjiven.'  As  the  act  of  28  Hen.  VIII. 
c.  15,  says,  'all  murders  committed  on  tlie  sea  shall  be  tried  in  a  shire,'  by  commission  of 
oyer  and  terminer;  so  our  act  says,  in  'all  cases  of  felonious  homicide,  &c.,  where,  &c., 
the  offender  may  be  indicted,  iV-c.'  Iksidcs,  the  character  of  our  enactment  may  be  fur- 
ther deduced  from  the  circumstance  that  it  is  fourui  in  the  Revised  Statutes,  in  the  35th 
chapter  on  'Criminal  Proceedings,'  and  n(jt  in  the  preceding  chapter  on  'Crimes  and 
Punishments.' 

"  It  was,  however,  argued  at  the  bar,  that  it  was  an  essential  part  of  the  definition  of 
murder,  that  the  i)eisori  slain  should  b(!  in  the  peace  of  the  state;  and  that,  where  the 
death  occurs  in  anotluir  state,  that  re(]uisite  is  deficient  in  the  crime  at  common  law,  and 
therefore,  it  cannot  be  an  offence  against  this  state,  unless  made  so  by  the  statute.  And 
upon  that  ground  u  distinction  was  taken  between  the  English  statutes  and  ours,  inasmuch, 
us  it  was  said,  the  stulules  both  of  Ed.  VI.  and  of  Hen.  Vlll.  provide  for  cases  of  killing, 


HOMICIDE.  47 

Murder.     By  shooting  icith  a  'pistcil.{v) 

That  A.  B.  of,  &c.,  yeoman,  on  wiih  force  and  arms,  at 

in  the  county  aforesaid,  in  and  upon  the  body  of  one  C.  U.,  in  the 
peace  of  said  connnonwealth  then  and  there  being,  feloniously,  wil- 
i'uUy  and  of  his  malice  aforethought,  did  make  an  assault ;  and  that 
t!je  said  A.  B.,  a  certain  pistol,  of  the  value  of  two  dollars,  then  and 
there  charged  with  gunpowder  and  one  leaden  bullet,  which  said 
pistol,  he  the  said  A.  B.  in  his  right  hand  then  and  there  had  and 
lield,  then  and  there  feloniously,  wilfully  and  of  his  malice  afore- 
thought, did  discharge  and  shoot  off,  to,  against  and  upon  the  said  C. 
]).;  and  that  the  said  A.  B.  with  the  leaden  bullet  aforesaid,  out  of  the 
pistol  aforesaid,  then  and  there,  by  force  of  the  gunpowder  aforesaid, 
by  the  said  A.  B.  discharged  and  shot  otf  as  aforesaid,  then  and  there 
feloniously,  wilfully  and  of  his  malice  aforethought,  did  strike,  pene- 
trate and  wound  him  the  said  C.  D.  in  and  upon  the  right  side  of  the 
belly  of  him  the  said  C.  D,,  giving  to  him  the  said  C.  D.  then  and 
there,  with  the  leaden  bullet  aforesaid,  so  as  aforesaid  discharged  and 
sliot  out  of  the  pistol  aforesaid,  by  the  said  A.  B.,  in  and  upon  the 
right  side  of  the  belly  of  him  the  said  C.  D.,  one  mortal  wound  of  the 
depth  of  four  inches,  and  of  the  breadth  of  half  an  inch;  of  which 
said  mortal  wound,  he  the  said  C.  D.  then  and  there  instantly  died. 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  A.  B.,  him  the  said  C.  D.,  in  the  manner  and  by  the  means 


in  which  the  whole  of  tlie  transaction  occurred  either  in  England,  or  within  the  juris, 
diction  of  Eng-land,  as  exercised  by  lier  adiiiiralty  court.  But  we  think  the  reasoning  is 
not  sound.  That  part  of  the  definition  of  murder  expressed  in  the  terms,  "on  the  king's 
peace,'  refers  not  to  the  place  of  the  assault  and  death,  but  to  tiie  state  and  condition  of 
the  person  slain,  as  being  or  not  being  entitled  to  the  protection  of  the  English  laws;  for 
example,  whether  he  be  a  subject  or  an  alien  enemy,  or  traitor  in  arms,  or,  in  more  ancient 
times,  an  infidel,  or  guilty  of  a  pr<emunire.  Then,  it  is  also  a  mistake  to  say,  that  the 
acts  are  confined  to  cases  in  which  every  part  of  the  transaction  was  within  the  jurisdic- 
tion of  England,  either  as  being  within  some  of  her  territories,  or  on  board  of  her  ships. 
Tiie  act  of  Geo.  II.  before  mentioned,  provides  for  the  case  of  one  stricken  in  England  and 
dying  on  the  sea,  or  'at  any  place  out  of  England,'  and  we  do  not  find  that  this  has 
received  a  ditFerent  construction  from  that  of  the  previous  statutes.  We  find  an  adjudi- 
cation, however,  upon  another  statute,  which  shows  that  the  question  does  not  depend  on 
tlie  ground  supposed,  but  that  the  indictment  is  to  conclude  at  common  law,  although  no 
p(.rt  of  the  transaction  was  witliin  the  Biitish  dominions  or  jurisdiction.  By  the  stat.  33 
Hi.n.  VIII.  c.  33,  it  is  enacted,  'that  if  ai  y  person,  being  examined  before?  the  king's 
council  upon  any  murder,  do  confess  such  oifence,  &c.,  then  in  such  case  a  commission  of 
oyer  and  ternuner  shall  be  made  to  such  pi  rsons  and  into  such  shires  and  j)laces  as  shall 
be  appointed  by  the  king,  for  the  speedy  tiial,  conviction  or  delivery  of  su:;h  offenders, 
which  commissioners  shall  have  power  and  authority  to  inquire,  hear  and  ditermine  such 
murders  within  the  shires  and  places  limited  by  their  commission,  by  such  good  and  lawful 
men  as  shall  be  returned  before  them,  in  whatever  other  shire  or  place  within  the  king's 
dominion,  or  without,  such  offence  of  murder,  so  examined,  was  done  or  committed.'  In 
Kex  V.  Sawyer,  R.  «fc  R.  C.  C.  294,  a  British  subject  was  indicted  for  the  murder  of 
another  British  subject,  '  at  Lisbon  in  the  kingdom  of  Portugal,  in  parts  beyond  sea  with- 
out Englan<!,'  and  the  indictment  was  at  common  law.  Tlie  case  was  argued  before  the 
twelve  judges,  and  they  held  tiiat,  being  for  a  common  law  felony,  crijimiftcd  abroad,  but 
made  triable  in  England  under  the  33  Hen.  VIII.,  the  indictment  was  right.  That  judg. 
ment  is  directly  in  point,  and  is  decisive  of  this  case  against  the  prisoner. 

"It  must  therefore  be  certified  to  the  Superior  Court,  that  there  is  no  error  in  the  judg. 
ment  given  by  that  court,  in  order  that  further  proceedings  may  be  had  thereon  according 
t)  law." 

Cr)  3  Chit  C.  L.  170;  Davis'  Precedents  170. 


48  OFFENCES  AGAINST  THE  PERSON. 

aforcsnid,  feloniously,  wilfully  and  of  his  malice  aforethought,  did 
kill  and  murder.     [Conclude  as  in  book  I,  chap.  3). 

Murder.     By  cutting  the  throat. (w) 

That  A.  B.,  of  &c.,  on  at  in  the  county  aforesaid,  witli 

force  and  arms,  in  and  upon  one  C.  D.  feloniously,  wilfully  and  of 
his  malice  aforethought,  did  make  an  assault;  and  that  the  said  A. 
B.,  with  a  certain  knife,  made  of  iron  and  steel,  which  he  the  said 

A.  B.  in  liis  right  hand  then  and  tliere  had  and  held,  the  throat  of 
him  the  said  C.  D.  feloniously,  wilfully  and  of  his  malice  afore- 
thought, did  strike  and  cut;  and  that  the  said  A.  B.,  with  the  knife 
aforesaid,  by  the  striking  and  cutting  aforesaid,  did  tlien  and  there 
give  to  him  the  said  C.  D.,  in  and  upon  the  said  throat  of  him  the 
said  C.  D.,  one  mortal  wound,  of  the  length  of  three  inches,  and  of 
the  depth  of  two  inches;  of  which  said  mortal  wound  the  said  C.  1)., 
from  the  said  day  of  to  the  day  of  aforesaid, 
at  aforesaid,  in  the  county  aforesaid,  did  suffer  and  languish, 
and  languishing  did  live  ;  on  which  said  day  of  afore- 
said, in  the  year  aforesaid,  at  aforesaid,  in  the  county  afore- 
said, he  the  said  C.  D.,  of  the  said  mortal  wound,  died.  And  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  A. 

B.  him  the  said  C.  D.,  in  matmer  and  form  aforesaid,  then  and  there 
feloniously,  wilfully  and  of  his  malice  aforethought,  did  kill  and 
murder.    (Conclude  as  in  chap.  3). 

Murder.     Jlgarnst  principal  in  the  first  and  principal  in  the  second 
degree,  fur  shooting  a  negro  slave  loith  a  pistol. {x) 

That  T.  P.  K.,  late  of  the  said  County  of  Monroe,  labourer,  and  D. 

C.  late  of  said  County  of  Monroe,  labourer,  not  having  the  fear  of 
God  before  their  eyes,  biU  being  moved  and  seduced  by  the  instiga- 
tion of  the  devil,  on  the  fifth  day  of  October,  in  the  year  of  our  Lord 
eighteen  hundred  and  thirty-five,  with  force  and  arms,  at  the  said 
County  of  Monroe,  in  and  upon  one  P.  a  negro  man  slave,  belonging 
to  one  G.  P.,  in  the  peace  of  God  and  of  the  said  State  of  Alabama, 
then  and  there  being,  feloniously,  wilfully  and  of  their  malice  afore- 
thought, did  make  an  assanlt;  and  that  the  said  T.  P.  K.,  a  certain 
pistol  of  the  value  of  ten  dollars,  then  and  there  loaded  and  charged 
with  gunpowder  and  twenty  leaden  bullets,  commonly  called  buck- 
.sliot,  which  pistol  he,  the  said  T.  P.  K.,  in  his  riglit  hand,  then  and 
there  had  and  held,  to,  against  and  upon  the  said  P.,  then  and  there 
feloniously,  wilfully  and  of  liis  malice  aforethought,  did  shoot  and 
discharge;  and  that  the  said  T.  P.  K.,  with  the  leaden  bullet  afore- 
said, out  of  the  pistol  aforesaid,  then  and  there,  by  force  of  the  gun- 
powder, shot  and  sent  forth,  as  aforesaid,  the  albresaid  P.,  in  and 
U|)on  the  buttocks  of  him  the  said  P.,  a  little  above  tiie  rectum  of 
him  the  said  P.,  then  and  there,  feloniously,  wilfully  and  of  his  malice 


(VD)  3  Ch.  C.  I..  757;  Davis'  Precedents  173. 

(z)  'V\m  form  wub  nustaincd  iu  State  v.  Coleman,  5  Port.  32. 


HOMICIDE.  49 

aforothought,  did  strike,  penetrate  and  wound,  giving  to  the  said  P. 
then  and  there,  with  the  leaden  bullets  aforesaid,  commonly  called 
buckshot,  as  aforesaid,  so  as  aforesaid  shot,  discharged  and  sent 
forth  out  of  the  pistol  aforesaid,  by  the  said  T.  P.  K.,  in  and  upon 
the  said  buttocks  of  him,  the  said  P.,  a  little  above  the  rectum  of 
him,  the  said  P.,  one  mortal  wound  of  the  depth  of  six  inches,  and  of 
the  breadth  of  half  an  inch,  of  which  said  mortal  wound  the  said  P., 
from  the  said  fifth  day  of  October,  in  the  year  of  our  Lord  eighteen 
Itundred  and  thirty-five,  until  the  thirteenth  of  the  same  month  of 
October,  in  the  year  last  aforesaid,  in  the  county  aforesaid,  did  lan- 
guish, and  languishing  did  live;  on  which  said  thirteenth  day  of  Oc- 
tober, in  the  year  last  aforesaid,  the  same  P.,  at  the  county  aforesaid, 
of  the  mortal  wound  aforesaid,  died;  and  that  the  aforesaid  D.  C, 
then  and  there,  feloniously,  wilfully  and  of  his  malice  aforethought, 
was  present,  aiding,  helping,  abetting  and  comforting,  assisting  and 
maintaining  the  said  T,  P.  K.,  the  felony  and  murder  aforesaid,  in 
manner  and  form  aforesaid,  to  do  and  commit.  And  so  the  jurors 
aforesaid,  upon  their  oaths  aforesaid,  do  say,  that  the  said  T,  P.  K. 
and  the  said  D.  C,  the  said  P.  then  and  there,  in  manner  and  form 
aforesaid,  feloniously,  wiltully  and  of  their  malice  aforethought,  did 
kill  and  murder,  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of  the  State 
of  Alabama. 

Against  principal  in   the  first  and   principal  in  the    second   degree^ 
Haw^ing.ixx) 

That  John  Joyce,  late  of  Philadelphia  County,  yeoman,  and  Peter 
Mathias,  late  of  the  same  county,  yeoman,  not  having  the  fear  of  God 
before  their  eyes,  but  being  moved  and  seduced  by  the  instigation  of 
the  devil,  on  the  eighteenth  day  of  December,  in  the  year  of  our  Lord 
one  thousand  eight  'hundred  and  seven,  with  force  and  arms,  in  the 
county  aforesaid,  in  and  upon  one  Sarah  Cross,  in  the  peace  of  God 
and  the  commonwealth,  then  and  there  being  feloniously,  wilfully 
and  of  their  malice  aforethought,  did  make  an  assault;  and  that  he 
the  said  John  Joyce,  a  certain  rope  of  the  value  of  five  cents,  on  and 
about  the  neck  of  her  the  said  Sarah  Cross,  then  and  there  feloniously, 
wilfully  and  of  his  malice  aforethought  did  fix,  tie  and  fasten,  and 
that  the  said  John  Joyce  with  the  rope  aforesaid,  so  as  aforesaid  fas- 
tened on  and  about  the  neck  of  her  the  said  Sarah  Cross,  her  the  said 
Sarah  Cross  then  and  there  feloniously,  wilfully  and  of  his  malice 
aforethought,  did  choke,  suffocate  and  strangle,  of  which  said  chok-^ 
ing,  suffocating  and  strangling,  she  the  said  Sarah  Cross  then  and 
there  instantly  died,  and  that  the  said  Peter  Mathias,  at  the  time  of 
committing  the  felony  and  murder  aforesaid  by  the  said  John  Joyce 
in  manner  and  form  aforesaid,  feloniously,  wilfully  and  of  his  malice 
aforethought,  was  present,  aiding,  helping  and  abetting,  assisting, 
comforting  and  maintaining  the  said  John  Joyce,  the  felony  and 

(«Rc)  Drawn  by  Mr.  J.  B.  M'Kcan,  and  sustained  by  tiic  Supreme  Court. 
v5 


60  OFFEffCES  AGAINST  THE  PERSON. 

imirder  aforesaid  in  manner  and  form  aforesaid,  to  do,  commit  and 
perpetrate.  And  so  the  inquest  aforesaid,  upon  their  oaths  and  affir- 
mations aforesaid,  do  say,  that  the  said  John  Joyce  and  Peter  Ma- 
thias,  her  the  said  Sarah  Cross,  then  and  there  in  manner  and  form 
aforesaid,  feloniously,  wilfully  and  of  their  malice  aforethought,  did 
kill  and  murder,  contrary  to  the  form  of  the  act  of  assembly  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity  of  the 
Commonwealth  of  Peimsylvania. 

Second  count.     Against  same.     Beating  and  haiigivg. 

And  the  inquest  aforesaid,  upon  their  oaths  and  affirmations  afore- 
said, do  further  present  that  the  said  John  Joyce  and  Peter  Mathias, 
not  having  the  fear  of  God  before  their  eyes,  but  being  moved  and 
seduced  by  the  instigation  of  the  devil,  on  the  said  eighteenth  day  of 
December,  in  the  year  aforesaid,  with  force  and  arms  in  the  county 
aforesaid,  in  and  upon  the  said  Sarah  Cross,  in  the  peace  of  God  and 
the  commonwealth  then  and  there  being,  feloniously,  wilfully  and 
of  their  malice  aforethought,  did  make  an  assault,  and  that  he  the 
said  John  Joyce  with  a  cerlain  large  stick  of  no  value,  which  he  the 
said  John  Joyce  in  his  right  hand,  then  and  there  had  and  held,  her 
tiie  said  Sarah  Cross  then  and  there  feloniously,  wilfully  and  of  his 
malice  aforethought,  divers  times  did  strike  and  beat,  giving  to  her 
the  said  Sarah  Cross  then  and  there  by  striking  and  beating  of  her 
the  said  Sarah  Cross  as  aforesaid,  with  the  stick  aforesaid,  in  and 
ujton  the  back  part  of  the  head  of  her  the  said  Sarah  Cross,  one  mor- 
tal bruise,  and  that  the  said  John  Joyce  also  a  certain  rope  of  the 
value  of  five  cents,  on  and  about  the  neck  of  her  the  said  Sarah 
Cross,  then  and  there  feloniously  and  wilfully,  and  of  his  maUce 
aforethought,  did  fix,  tie  and  fasten,  and  that  the  said  John  Joyce 
with  the  rope  last  aforesaid,  so  as  last  aforesaid,  fixed,  tied  and  fas- 
tened on  and  about  the  neck  of  her  the  said  Sarah  Cross,  then  and 
there  did  violently  squeeze,  press  and  bind  her  the  said  Sarah  Cross ; 
of  which  said  striking  and  beating  of  her  the  said  Sarah  Cross  in  and 
upon  the  back  part  of  the  head  of  her  the  said  Sarah  Cross  with  the 
stick  aforesaid,  and  also  of  the  squeezing,  pressing  and  bindhig  of  the 
neck  of  her  the  said  Sarah  Cross  with  the  rope  as  last  aforesaid,  she 
the  said  Sarah  Cross  then  and  there  instantly  died;  and  that  the  said 
Peter  Mai-iias,  at  the  time  of  committing  the  felony  and  murder  last 
aforesaid,  by  the  said  John  Joyce  in  manner  and  form  h.st  aforesaid, 
feloniously,  wilfully  and  of  his  malice  aforethought,  was  present 
aiding,  lielping,  abetting  and  assisting,  comforting  and  maintaining 
the  .said  John  Joyce,  the  felony  and  murder  last  aforesaid  in  manner 
and  form  last  aforesaid  to  do,  commit  and  perpetrate. 

And  so  the  inquest  aforesaid  upon  their  oaths  and  affirmations 
aforesaid,  do  further  say,  that  the  said  John  Joyce  and  Peter  Mathias, 
lier  the  said  Sarah  Cross  then  and  there  in  manner  and  form  last 
aforesaid,  feloniously  and  wilfully  and  of  their  malice  aforethought 
did  kill  and  murder,  contrary  to  tlie  form  of  the  act  of  assembly  in 
such  case  made  and  provided  and  against  the  peace  and  dignity  of 
the  Commonwealth  of  Pennsylvania. 


HOMICIDE.  51 

Marder.     Striking  icith  a  j)uher.{y) 

That  C.  D.,  of  said  B.,  labourer,  on  the  day  of  now 

last  past,  with  force  and  arms,  at  B.  albresaid,  in  the  county  afore- 
said, in  and  upon  one  E.  F.,  feloniously,  wilfully  and  of  his  malice 
aforethought,  did  make  an  assault;  and  that  he  the  said  C.  D.  then 
and  there  with  a  certain  iron  poker,  which  he  the  said  C.  D.  in  both 
his  Itands  then  and  there  had  and  held,  the  said  E.  F.,  in  and  upon 
the  back  part  of  tlie  head  of  him  the  said  E.  F.,  then  and  there  felo- 
niously, wilfully  and  of  his  malice  aforethought,  did  strike,  giving 
unto  him  the  said  E.  F.  then  and  there,  with  the  said  iron  poker,  by 
the  stroke  aforesaid,  in  manner  aforesaid,  in  and  upon  the  back  part 
of  the  liead  of  him  the  said  E.  F.,  one  mortal  wound,  of  the  length  of 
three  inclies,  and  of  the  depth  of  one  inch;  of  which  said  mortal 
wound,  he  the  said  E.  F.,  on  the  said  day  of  at  B.  afore- 

said, in  the  county  aforesaid,  did  languish,  and  languishing  did  live; 
on  which  same  day  of  aforesaid,  at  B.  aforesaid,  in  the 

county  aforesaid,  he  the  said  E.  F.,  of  the  said  mortal  wound,  died. 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
tiic  said  C.  D.  him  the  said  E.  F.,  in  manner  and  form  aforesaid,  fe- 
loniously, wilfully  and  of  his  malice  aforethought,  did  kill  and  mur- 
der.    {Conclude  as  in  book  \,  chapter  3). 

Murder.    By  riding  over  with  a  horse.(%) 

That  C.  D.,  of  said  B.,  labourer,  on  the  day  of  now 

last  past,  with  force  and  arms,  at  B.  aforesaid,  in  the  county  afore- 
said, in  and  upon  one  E.  F.,  feloniously,  wilfully  and  of  his  malice 
aforethought,  did  make  an  assault;  and  that  the  said  C.  D.  then  and 
there  riding  upon  a  horse,  the  said  horse  in  and  upon  the  said  E.  F, 
then  there  feloniously,  wilfully  and  of  his  malice  aforethought,  did 
ride  and  force,  and  him  the  said  E.  F.,  with  the  horse  aforesaid,  then 
and  there,  by  such  riding  and  forcing  as  aforesaid,  did  throw  to  the 
ground;  by  means  whereof  the  said  horse,  with  his  hinder  feet,  him 
the  said  E.  F.,  so  thrown  to  and  upon  the  ground  as  aforesaid,  in  and 
upon  the  back  part  of  the  head  of  him  the  said  E.  F.,  did  then  and 
there  strike  and  kick,  thereby  then  and  there  giving  to  him  the  said 
E.  F.,  in  and  upon  the  back  part  of  the  head  of  him  the  said  E.  F., 
one  mortal  fracture  and  contusion,  of  the  breadth  of  two  inches,  and 
of  the  depth  of  one  inch;  of  which  said  mortal  fracture  and  contusion, 
the  said  E.  F.  then  and  there  instantly  died.  And  so  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say,  that  the  said  C.  D.  him  the 
said  E.  F.,  in  manner  and  form  aforesaid,  feloniously,  wilfully  and 
of  his  malice  aforethought,  did  kill  and  murder.  [Conclude  as  in 
book  1,  chapter  3). 

Murder.    By  droicniug. 

That  C.  D.,  of  said  B.,  labourer,  on  the  day  of  now 

last  past,  with  force  and  arms,  at  B.  aforesaid,  in  the  county  afore- 

(y)  3  Chit.  C.  L.  761  ;  Davis'  Precedents  175. 

iz)  3  Chit.  C.  L.  7Go;  2  Stark.  C.  P.  3a0;  Davis'  Precedents  177. 


52  OFFENCES  AGAINST  THE  PERSON. 

said,  in  and  upon  one  E.  F.,  feloniously,  wilfully  and  of  his  malice 
aforethought,  did  make  an  assault;  and  that  the  said  C.  D,  then  and 
there  feloniously,  wilfully  and  of  his  malice  aforethought,  did  take 
the  said  E.  F.  into  both  the  hands  of  him  the  said  C.  D.,  and  did  then 
and  there  feloniously,  wilfully  and  of  his  malice  aforethought,  cast, 
throw  and  push  tlie  said  E.  F.  into  a  certain  pond  there  situate, 
wherein  there  was  a  great  quantity  of  water;  by  means  of  which 
said  casting,  throwing  and  pushing  of  the  said  E.  F.  into  the  pond 
aforesaid,  by  the  said  C.  D..,  in  form  aforesaid,  he  the  said  E.  F.,  in 
the  pond  aforesaid,  with  the  water  aforesaid,  was  then  and  there 
choked,  suffocated  and  drowned;  of  which  said  choking,  suflbcation 
and  drowning,  he  the  said  E.  F.  then  and  there  instantly  died.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  C.  D.,  in  manner  and  form  aforesaid,  him  the  said  E.  F.  felo- 
niously, wilfully  and  of  his  malice  aforethought,  did  kill  and  mur- 
der.(«)     {^Conclude  as  in  book  1,  chapter  3). 

Murdei\     By  stravgUrig.{h) 

That  E.  W,  K.,  late,  &c.,  not  having  the  fear,  &c.,  but  being  moved, 
&c.,  on,  &c.,  in  and  upon  one  J.  D.,  in  the  peace,  &c.,  feloniously,  wil- 
fully and  of  his  malice  aforethought,  did  make  an  assault,  and  that 
the  said  E.  W.  K.  a  certain  rope  about  the  neck  of  the  said  J.  D.  then 
and  there  feloniously  and  wilfully,  and  of  his  malice  aforethought,  did 
fix>  tie  and  fosten,  and  that  the  said  E.  W,  K.  with  the  rope  afore- 
said, {him)  the  said  J.  D.  then  and  there  feloniously  and  wilfully,  and 
of  his  malice  aforethought,  did  drag,  pull,  choke,  strangle  and  dislo- 
cate the  neck;  of  which  said  dragging,  pulling,  choking,  strangling 
and  dislocation  of  the  neck,  he  the  said  J.  D.  then  and  there  instantly 
died.  And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  E.  W.  K.  in,  &c.,  the  said  J.  D.  in  manner  and  form 
aforesaid,  feloniously  and  wilfully,  and  of  his  malice  aforethought, 
did  kill  and  nuirder,  against  the  peace,  &c. 

Second  could.     By  slraiig/iyig  and  s.tahbing  v-ifji  unknoicn  persons. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 

(a)  3  Chit.  C.  L.  768,  Davis'  Precedents  181. 

(h)  'J'his  indictment,  vvitii  a  little  quiilification  iji  the  first  county  is  the  same  with  that 
8iiu<;tiontd  by  the  Sni)reiue  ('ourt  of  Norlli  Carolina  in  State  v.  Haiiey,  2  Dev.  432.  "  it 
i»  lastly  urjrrid,"  said  the  coiarl,  that  U|)()n  a  critical  construction  of  the  indictment,  it  docs 
not  more  appear,  that  Kimhif.iijrh  dia<rged,  pulled  and  ciiokfd  Davis,  than  that  Davis 
draj/jred,  pulled  and  choked  Kiiiibroujrh.  However  this  may  be  upon  the  first  count,  I 
think  no  such  objection  as  this  appears  on  the  .second.  In  that  count  it  is  charged  th,a 
Kimbroujtjh  made  an  assault  upon  Davis,  and  that  Kin)l)rough  placed  a  rope  around  Da- 
vis' neck,  and  that  the  .said  Kimbrouirh,  by  nieans  of  said  rope,  tlic  said  .John  Davis  did 
choke  and  stranjjrlc;  and  the  said  Kin.brough,  with  a  dagi/er,  which  he  then  in  his  hand 
held,  (he  said  John  FJavis,  in  and  upon  the  belly  of  the  said  Joha  Davis,  did  thrust  and 
penetrate,  giving  to  him  the  said  John  Davis,  with  lh<!  said  dagger,  in  and  upon  the  belly 
of  him  the  said  John  Davis,  a  n)ortaI  wound,  of  which  the  said  John  Davis  died  on  llio 
next  d,iy  ;  with  a  c.onelusion,  that  he  the  said  Kindxough,  the  said  John  Davis  di^l  kill 
and  murder.  Human  ingenuity  cannot  make  out  of  this,  that  it  stands  inditleient,  whe- 
ther Kiinbrough  or  Davis  was  the  actor  in  all  and  every  act  necessary  to  constitute  (j^ir- 
der,  or  which  was  llie  agent  and  which  the  sufferer,  n.it  only  in  the  close  of  the  drama, 
but  in  each  and  every  act  which  led  to  the  catastrophe." 

The  rliJIicully  rujsed  an  to  the  first  count  is  obviated  by  the  insertion  of  "him"  in  the 
itevetilh  line. 


HOMICIDE.  ,  53 

sent,  that  the  said  E.  W.  K.  with  clivers  other  persons,  &c.,  after- 
wards, to  wit,  &.C.,  not  having  the  fear,  &c.,  in  and  upon  the  said  J. 
D.  in  the  peace,  &.C.,  ibloniously,  wilfully  and  of  their  malice  afore- 
thousht,  did  make  an  assault,  and  that  the  said  E.  VV.  K.  a  certain 
rope  about  tlie  neck  of  the  said  J.  D.  then  and  there  feloniously,  wil- 
fully and  of  their  malice  aforethought,  did  fix,  tie  and  fasten ;  and 
that  the  said  E.  W.  K.  by  means  of  said  rope,  him  the  said  J.  D,  then 
and  there  feloniously,  wilfully  and  of  his  malice  aforethought,  did 
drag,  pull,  choke  and  strangle;  and  that  the  said  E.  W.  K.  with  a 
certain  drawn  dagger,  being  part  of  a  walking-cane,  &c.,  which  he 
the  said  E.  W.  K.  in  his  right  hand  then  and  there  had  and  held,  hini 
the  said  J.  D.  in  and  upon  the  forepart  of  the  belly  and  divers  otb.er 
parts  of  the  body  of  the  said  J.  D.  then  and  there  feloniously,  wilfully 
and  of  his  malice  aforethought,  did  strike,  thrust  and  penetrate,  giv- 
ing to  the  said  J.  D.  then  and  there,  with  the  dagger  aforesaid,  in 
and  upon  the  aforesaid  forepart  of  the  belly  and  divers  other  parts 
of  the  body  of  the  said  J.  D.,  several  mortal  wounds  of  the  breadth  of 
one  inch,  and  of  the  depth  of  six  inches;  as  well  of  which  pulling, 
dragging,  choking  and  strangling,  as  also  of  the  striking,  thrusting 
and  penetrating,  &c..  He  the  said  J.  D.  from,  &c.,  until,  &c.,  did  lan- 
guish, &c.,  on  which,  &c.,  the  said  J.'  D.  in,  &c.,  of  the  pulling,  drag- 
ging, choking  and  strangling,  as  well  as  of  the  mortal  wounds  inflict- 
ed as  aforesaid,  died;  and  that  divers  other  persons,  &c.  And  so  the 
jurors,  &c.,  do  further  say,  that  the  said  E.  W.  K.  and  divers  other 
persons,  the  said  J.  D.  then  and  there  in  manner  and  form  last  afore- 
said, feloniously,  wilfully  and  of  their  malice  aforethought,  did  kill 
and  murder,  against  the  peace,  &c. 

Murder.     By  poisoning  icith  arsenic.(c) 

That  Robert  Sandys,  late  of  the  parish  of  Stockport  in  the  county 
of  Chester,  labourer,  and  Ann  Sandys,  otherwise  called  Ann  Devan- 
nah,  late  of  the  same  place,  not  having  the  fear  of  God  before  their 
eyes,  but  being  moved  and  seduced  by  the  instigations  of  the  devil, 
wickedly  contriving  and  intending  one  Elizabeth  Sandys  with  poi- 
son, wilfully,  feloniously  and  of  their  malice  aforethought  to  kill  and 
murder,  on  the  twenty-third  cay  of  September,  in  the  fourth  year  of 
the  reign  of  our  sovereign  lady  Victoria,  with  force  and  arms,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  feloniously,  \a  iltuUy  and  of 
their  malice  aforethought,  a  large  quantity  of  a  certain  deadly  poison 
called  white  arsenic,  did  give  and  administer  unto  the  said  Elizabeth 
Sandys  with  intent  that  she  should  take  and  swallow  down  the  same 
into  her  body  (they  then  and  there  well  knowing  the  said  white  ar- 
senic to  be  a  deadly  poison),  and  the  said  white  arsenic  so  given  and 
administered  unto  her  by  the  said  Robert  Sandys  and  Ann  Sandys, 
otherwise  called  Ann  Devamiah  as  aforesaid,  the  said  Elizabeth 
Sandys  did  then  and  there  take  and  swallow  down  into  her  body  : 

'  (c)  R,  K,  Sandys,  1  C.  &  M.  345.  A  verdict  of  g^uilty  was  supported  on  this  form,  it 
being  held  that  the  allccralion  "and  of  the  said  mortal  sickness  died,"  was  good  without 
stating  that  tlic  deceased  died  of  the  poisoninnr.     Sec  another  form  on  p.  57. 

5" 


54  OFFENCES  AGAINST   THE  PERSON. 

by  reason  and  by  means  of  which  said  taking  and  swallowing  down 
the  said  white  arsenic  into  her  body  as  aloresaid,  the  said  Elizabeth 
Sandys  became  and  was  mortally  sick  and  distempered  in  her  body, 
of  which  said  mortal  sickness  and  distemper  the  said  Elizabeth  San- 
dys irom  the  said  twenty-third  day  of  September,  in  the  year  last 
aforesaid,  until  the  twenty-fifth  day  of  the  same  month,  in  the  same 
year,  at  the  parish  aforesaid,  in  the  county  aforesaid,  did  languish 
and  languishing  did  live,  on  which  said  twenty-fifth  day  of  Septem- 
ber, in  the  year  aforesaid,  at  the  parish  aforesaid,  in  the  county  afore- 
said, the  said  Ehzabeth  Sandys  of  the  said  mortal  sickness  died  ;  and 
so  the  jurors  aforesaid  upon  their  oath  aforesaid,  do  say  that  the  said 
Robert  Sandys  and  Ann  Sandys,  otherwise  called  Ann  Devannah, 
the  said  Ehzabeth  Sandys  in  manner  and  form  aforesaid,  feloniously, 
wilfully  and  of  their  malice  aforetliought,  did  kill  and  murder,  against 
the  peace  of  our  lady  the  qtieen,  her  crown  and  dignity. 

Murdei\     By  burning  a  house  where  the  deceased  was  at  the  time.{d) 

That  S.  C.  late,  &.C.,  not  having  the  fear  of  God  before  his  eyes, 
but  being  moved  and  seduced  by  the  instigation  of  the  devil,  on  the 
fii'ih  day  of  April,  one  thousand  eight  hundred  and  thirty,  with  force 
and  arms,  &c.,  at  the  township  aforesaid,  in  the  county  aforesaid,  and 
within  the  jurisdiction  of  this  court,  did  wilfully  and  maliciously 
burn  a  certain  dwelling  house  of  one  R.  S.,  there  situate,  and  that 
one  J.  H.,  of  the  township  and  county  aforesaid,  within  the  jurisdic- 
tion aforesaid,  in  the  said  dwelling  house  then  and  there  being,  be- 
fore, at  and  during  the  said  burning,  and  was  then  and  there,  by 
reason  and  means  of  the  said  burning  so  committed  and  done  by  the 
said  S.  C,  in  manner  aforesaid,  mortally  burned  and  killed ;  and  so 
the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  say,  that  the  said 
S.  C,  him  the  said  J.  H.,  in  manner  and  form  aforesaid,  feloniously  and 
wilfully,  and  of  his  malice  aforethought,  did  kill  and  murder,  against 
tlie  form  of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  of  this  state,  the  government  and  digmty  of  the  same. 

Second  count.     Averrhig  a  preconceived  intention  to  kill. 

And  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  further 
present,  that  the  said  S,  C,  not  having  the  fear  of  God  before  his 
eyes,  but  being  moved  and  seduced  by  the  instigation  of  the  devil, 
and  of  his  malice  aforethought  contriving  and  intending  one  J.  H., 
there  being  in  a  certain  dwelling  house  of  one  R.  S.,  situate  in  the 
township  and  county  aforesaid,  feloniously,  wilfully  and  of  his  malice 
aforethought,  to  burn,  kill  and  murder,  on  the  same  day  and  year 
aforesaid,  with  force  of  arms,  at  the  township  aforesaid,  in  the  county 
and  within  the  jurisdiction  aforesaid,  did  wilfully  and  maliciously  set 
fire  to.  and  burn  the  said  dwelling  house,  the  said  J.  IT.  then  and 
lh(;re,  before,  at  and  during  the  said  burning,  being  in  the  said 
dwelling  house,  he  thosaid  S.  C,  then  and  there  well  knowing  the 
said  J.  II.  to  be  in  the  said  dwelling  house,  and  that  he  the  said  S. 
C,  in  so  setting  fire  to  and  burnmg  the  said  dwelling  house  as  afore - 

{d)  Slate  -9.  Coi,\,i:t,  1  Green  362;  see  pusira,  book  vi. — "  I^lua  of  auterfois  acquit,"  iVr 
the  Huli.scquctit  uttioii  of  liiu  court  oa  this  iiidiclmuiit. 


HOMICIDR.  55 

said,  then  and  there  feloniously,  wilfuiHy  and  of  his  malice  afore- 
thought, did  mortally  burn  the  body  af  the  said  J.  H. ;  by  means  of 
which  said  mortally  burning  of  the  body  of  the  said  J.  H.,  as  afore- 
said, he,  the  said  J.  H.,  on  the  day  and  year  aforesaid,  at  the  town- 
ship aforesaid,  in  the  county  and  within  the  jurisdiction  aforesaid, 
did  die  ;  and  so  the  jurors  aforesaid,  upon  their  aaths  aforesaid,  do 
say  that  the  said  S.  C,  the  said  J.  H.,  in  manner  and  form  aforesaid, 
feloniously,  wilfully  and  of  his  malice  afo-rethought,  did  kill  and  mur- 
der, against  the  form,  &c. 

Murder.     By  starving.{e) 

Middlesex,  to  wit :  The  jurors  for  our  lady  the  queen,  upon  their 
oaths  present,  that  J.  S.,  late  of  the  parish  of  13.,  in  the  county  of  M., 
carpenter,  not  having  the  fear  of  God  before  his  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  and  of  his  malice 
aforethought,  contriving  and  intending  one  J.  N.,  then  being  an  ap- 
prentice to  him  the  said  J.  S.,  feloniously  to  starve,  kill  and  murder, 
on  the  third  day  of  August,  iji  the  ninth  year  of  the  reign  of  our 
sovereign  lady  Victoria,  and  o-n  divers  days  and  times  between  that 
day  and  the  twenty-eighth  day  of  the  same  month,  in  the  same  year, 
with  force  and  arms,  at  the  parish  afo.resaid,  in  the  county  aforesaid, 
in  and  upon  one  J.  N.,  his  apprentice  as  aforesaid,  in  the  peace  of 
God  and  of  our  said  lady  the  queen,  then  and  there  being,  feloniously, 
wilfully  and  of  his  malice  aforethought,  did  make  divers  assaults  ;  and 
tliat  the  said  J.  S.,  on  the  said  third  day  of  August,  in  the  year  last 
aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  him  the 
said  J.  N.,  in  a  certain  room  in  the  dwelling  house  of  him  the  said  J. 
S.  there  situate,  feloniously,  wilfully  and  of  his  malice  aforethought, 
did  secretly  confine  and  imprison,  and  that  the  said  J,  S.,  from  the 
said  third  day  of  August,  in  the  year  last  aforesaid,  until  the  twenty- 
eighth  day  of  the  same  month,  in  the  same  year,  at  the  parish  afore- 
said, in  the  county  aforesaid,  feloniously,  wilfully  and  of  his  malice 
aforethought,  did  neglec-t,  omit  and  refuse  to  give  and  administer,  and 
to  permit  and  suffer  to  be  given  and  administered  to  him  the  said  J. 
N.,  sufficient  meat  and  drink  necessary  for  the  sustenance,  support 
and  maintenance  of  the  body  of  him  the  said  J.  N. ;  by  means  of 
which  said  confinement  and  imprisonment,  and  also  of  such  neglect- 
ing and  refusing  to  give  and  administer,  and  to  permit  and  suffer  to 
be  given  and  administered  to  the  said  J.  N.,  such  meat  and  drink  as 
were  sufficient  and  necessary  for  the  sustenance,  support  and  main- 
tenance of  the  body  of  him  tlie  said  J.  N.,  he  tlie  said  J.  N.,  from  the 
said  third  day  of  August,  in  the  year  last  aforesaid,  until  the  twenty- 
eighth  day  of  the  same  month,  in  the  same  year,  at  the  parish  afore- 
said, in  the  county  aforesaid,  did  languish,  &.G.  &.c. 

(e)  Arch.  C.  P.  405.  If  tlie  indictment  be  for  refusing  to  supply  tlie  apjircntice  with 
necessaries,  it  must  sttitie  that  the  apprentice  was  of  tender  years  unulilc  to  provide  for  him- 
self; Reg.  V.  Friend,  R.  &  R.  20 ;  Reg.  v.  Marriott,  8  C.  &,  P.  425.  Where  the  indiciment 
charges  an  imprisoning,  Hiat  suffieieiilly  shows  tlie  duty  to  supply  food  ;  but  if  it  do  not, 
then  it  must  allege  a  duty  in  tlie  defendant  to  sup|ily  tlie  deceased  with  food;  Reg.  v.  Ed- 
w.irds,  8  C.  &.  P.  Gil  ;  see  as  to  evidence,  Arch.  C.  P.  40G,  et  seq.  It  is  necessary,  also,  to. 
prove  that  J,  N.  was  the  apprentice  of  J.  S.,or  at  least  acted  as  such ;  Arch.  C.  E.  513. 


56  OFFEXCES  AGAINST   THE  PERSOf'f. 

Murder.    First  count,  hi/  choking,  against  two — one  as  principal  in  the 
jirst  degree,  and  the  other  in  the  second  degree.{f) 

That  J.  W.,  late  of  the  county  aforesaid,  yeoman,  and  H.  N.,  late 
of  the  county  aforesaid,  widow,  not  having  the  fear  of  God  before 
their  eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,  on  the  tenth  day  of  April,  in  the  year  one  thousand  eight  hun- 
dred and  twenty-five,  at  the  county  aforesaid,  and  within  the  juris- 
diction of  this  court,  with  force  and  arms,  in  and  upon  one  G.  H.  W., 
in  the  peace  of  God  and  of  the  commonwealth,  then  and  there  being, 
feloniously,  wilfully  and  of  their  malice  aforethought,  did  make  an 
assault,  and  that  he  the  said  J.  W.,  a  certain  muslin  handkerchief  of 
the  value  of  twelve  cents,  about  the  neck  of  him  the  said  G.  H.  W., 
then  and  there  feloniously,  wilfully  and  of  his  malice  aforethought, 
did  fix,  tie  and  fasten,  and  that  the  said  J.  W.,  with  the  muslin  hand- 
kerchief aforesaid,  him  the  said  G.  H.  W.,  then  and  there  feloniously, 
wilfully  and  of  his  malice  aforethought,  did  choke,  suffocate  and 
strangle;  of  which  said  choking,  suffocating  and  strangling,  he  the 
said  G.  H.  W.,  then  and  there  instantly  died.  And  that  she  the  said 
H.  N.,  at  the  time  of  the  committing  of  the  felony  and  murder  afore- 
said, in  manner  and  form  aforesaid,  feloniously,  wilfully  and  of  her 
malice  aforethought,  was  present  aiding,  abetting  and  counseling  the 
said  J.  W.,  the  felony  and  murder  aforesaid  to  do  and  commit;  and 
so  the  inquest  aforesaid,  upon  their  oaths  and  affirmation  aforesaid, 
do  say,  that  the  said  J.  W.  and  the  said  H.  N.,  the  said  G.  H.  W.,  in 
manner  and  form  aforesaid,  feloniously,  wilfully  and  of  their  malice 
aforethought,  did  kill  and  murder,  contrary  to  the  form  of  the  acts  of 
tlie  general  assembly  in  such  case  made  and  provided,  and  against, 
6.C. 

Second  count,  by  choking  and  heating.  Against  two — one  as  princi- 
pal  in  first  degree,  the  other  in  second  degree. 

And  the  inquest  aforesaid,  upon  their  oaths  and  affirmations  afore- 
said, do  further  present,  that  the  said  J.  W.,  and  the  said  H.  N.,  not 
having  the  fear  of  God  before  their  eyes,  but  being  moved  and  se- 
duced by  the  instigation  of  the  devil,  on  the  said  tenth  day  of  April, 
in  the  year  one  thousand  eight  hundred  and  twenty-five,  at  the 
county  aforesaid,  and  within  the  jurisdiction  of  this  court,  with  force 
and  arms,  in  and  upon  tlie  said  G.  TI.  W.,  in  the  peace  of  God  and 
of  the  commonwealth  then  and  there  being,  feloniously,  wilfully  and 
of  their  malice  aforethought,  did  make  an  assault,  and  that  he  the 
said  J.  W.,  a  certain  muslin  handkerchief  of  the  value  of  twelve 
cents,  about  the  neck  of  him  the  said  G.  II.  W.,  then  and  there  felo- 
niously, wilfully  and  of  his  malice  aforethought,  did  fix,  tie  and  fasten, 
and  that  the  said  J.  W.  with  the  muslin  handkerchief  aforesaid,  the 
neck  of  iiim  the  said  G.  II.  W.,  then  and  there  feloniously,  wilfully 
and  of  his  malice  aforethought,  did  violently  squeeze  and  ))rcss,  and 
that  the  said  J.  W.,  with  a  certain  large  slick  of  the  value  of  one 
cent,  which  he  the  said  J.  W.,  then  and  there  in  his  right  hand  had 
and  held,  him  the  said  G.  II.  W.,  in  and  upon  the  right  side  of  tiio 

(/)  Sec  p.  53,  for  anotlicr  form. 


HOMICIDE.  57 

1 

hend  of  him  the  said  G.  H.  W,,  then  and  there  feloniously,  wilfully 
and  of  his  malice  aforethought,  did  strike  and  beat,  then  and  there 
giving  to  the  said  G.  H.  W.,  by  then  and  there  so  striking  and  beat- 
ing him  the  said  G.  H.  W.  with  the  stick  aforesaid  in  and  upon  the 
right  side  of  the  head  of  the  said  G.  H.  W.,  one  mortal  bruise  of  the 
length  of  two  inches,  and  of  the  breadth  of  one  inch;  of  which  said 
violent  squeezing  and  pressing  of  the  neck  of  him  the  said  G.  H.  VV., 
as  well  as  of  the  said  striking  and  beating  of  him  the  said  G.  H.  W., 
in  and  upon  the  right  side  of  the  head  of  him  the  said  G.  H.  W.,  with 
the  stick  aforesaid,  he  the  said  G.  H.  W.,  then  and  there  instantly 
died;  and  that  she  the  said  H.  N.,  at  the  time  of  the  comniitting  of  the 
i'elony  and  murder  last  aforesaid,  in  manner  and  form  aforesaid, 
feloniously,  wilfully  and  of  her  malice  aforethought  was  present  aid- 
ing, abetting  and  counseling  the  said  J.  W.  the  felony  and  murder 
last  aforesaid,  to  do  and  commit ;  and  so  the  inquest  aforesaid,  upon 
their  oaths  and  affirmations  aforesaid,  do  say,  that  the  said  J.  W.  and 
the  said  H.  N.,  the  said  G.  H.  W.,  in  manner  and  form  last  aforesaid, 
feloniously,  wilfully  and  of  their  malice  aforethought,  did  kill  and 
murder,  contrary  to  the  form  of  the  act  of  the  general  assembly  in 
such  case  made  and  provided,  and  against  the  peace  and.  dignity  of 
the  Commonweahb  of  Peansylvai:>ia. 

Murder  by  poisoning.    First  count  with  arsenic,  in  chicken  sou'p.{g) 

The  grand  inquest  of  the  Commonwealth  of  Pennsylvania,  inquiring 
for  the  body  of  the  County  of  Bucks,  upon  their  oaths  and  solenni 
affirmations  respectively,  do  present  that  Lucretia  Chapman,  late  of 
the  county  aforesaid,  widow,  otherwise  called  Lucretia  Espos  y  Mina, 
late  of  the  county  aforesaid,  wndow,and  Lino  Amalia  Espos  y  Mina, 
late  of  the  county  aforesaid,  yeoman,  otherwise  called  Celestine  Ar- 
mentarius,  late  of  the  county  aforesaid,  yeoman,  otherwise  called 
Amalia  Gregoria  Zarrier,  late  of  the  county  aforesaid,  yeoman,  not 
having  the  fear  of  God  before  their  eyes,  but  being  moved  and 
seduced  by  the  instigation  of  the  devil,  and  of  their  malice  afore- 
thouglit  contriving  and  intending  a  certain  William  Chopnian  to 
deprive  of  his  lite,  and  him  the  said  William  Chapman,  feloniously 
to  kill  and  murder,  on  the  twentieth  day  of  June,  in  the  year  of  our 
Lord  one  thousand  ei§I>t  hundred  and  thirty-one,  and  on  divers  other 
days  and  times  between  the  said  twentieth  day  of  June,  in  the  year 
last  aforesaid,  and  the  twenty-third  day  of  June,  in  the  same  year, 
with  force  and  arms  at  the  county  aforesaid,  and  within  the  jurisdic- 
tion of  this  ODurt,  did  knowingly,  wilfully,  feloniously  and  of  their 
malice  aforethought,  mix  and  mingle  certain  deadly  poison,  called 
arsenic,  in  certain  chicken  soup,  which  had  been,  at  divers  days  and 
t|mes,  during  the  time  aforesaid,  prepared  tor  the  use  of  the  said  Wil- 
liam Chapiuan,  to  be  drunk  by  him  the  said  William  Chapman, 
(they  the  said  Lucretia  Chapman,  otherwise  called  Lucretia  Espos 
y  Mina,  and  the  said  Lino  Amalia  E3pos  y  Mina,  otherwise  called 

{g)  Com.  ».  Minn,  Court  of  0.&,  T.  of  Bucks  County,  I83I.    The  defendant  .Mina  was 
convicted  and  executed.     See  p.  53,  tor  anolner  I'oim. 


58  OFFENCES  AGAINST  THE  PERSON. 

Cclestine  Armenfarius,  otherwise  called  Amalia  Gregoria  Zarrier, 
then  and  there  well  knowing  that  the  said  chicken  soup  with  which 
they,  the  said  Lucretia  Chapman,  otherwise  called  Lncretia  Espos  y 
Mina,  and  the  said  Lino  Arnaha  Espos  y  Mina,  otherwise  called  Ce- 
lestine  Arnientarius,  otherwise  called  Amalia  Gregoria  Zarrier,  did 
so  mix  and  mingle  the  said  deadly  poisons  as  aforesaid,  was  then  and 
there  prepared  tor  the  use  of  the  said  William  Chapman,  with  intent 
to  be  then  and  there  administered  to  him  for  his  drinking  the  same), 
and  the  said  chicken  soup  with  which  the  said  deadly  poison  was  so 
mixed  as  aforesaid,  afterwards,  to  wit,  on  the  said  twentieth  day  of 
June,  in  the  year  last  aforesaid,  and  on  the  said  other  days  and  times 
last  mentioned,  at  the  county  and  within  the  jurisdiction  aforesaid, 
was  delivered  to  the  said  William  Chapman,  to  be  then  and  there 
drunk  by  him,  the  said  William  Chapman,  and  he  the  said  Willjam 
Chapman  (not  knowing  the  said  poison  to  have  been  mixed  with  the 
said  chicken  soup,  did,  afterwards,  to  wit,  on  the  said  twentieth  day 
of  June,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
thirty-one,  and  on  the  said  other  days  and  times  above  mentioned, 
there  drink  and  swallow  down  into  his  body  several  quantities  of  the 
said  deadly  poison  so  mixed  as  aforesaid  with  the  said  chicken  soup, 
and  the  said  William  Chapman  of  the  poison  aforesaid  and  by  the 
operation  thereof  then  and  there  became  sick  and  greatly  distempered 
in  his  body,  of  which  said  sickness  and  distemper  of  body,  occasioned 
by  the  said  drinking,  taking  and  swallowing  down  into  the  body  of 
the  said  William  Chapman  of  the  deadly  poisons  aforesaid,  so  mixed 
and  mingled  in  the  said  chicken  soup  as  aforesaid,  he  the  said  Wil- 
liam Chapman  from  the  said  several  days  and  times  on  which  he  has 
so  taken,  drunk  and  swallowed  down  the  same  as  aforesaid,  until  the 
said  twenty-third  day  of  June,  in  the  year  last  aforesaid,  at  the  county 
aforesaid,  and  within  the  jurisdiction  aforesaid,  did  languish,  and  lan- 
guishing did  live,  on  which  said  twenty-third  day  of  June,  in  the 
year  last  aforesaid,  at  the  county  and  within  the  jurisdiction  aforesaid, 
he,  the  said  William  Chapman,  of  the  poison  aforesaid,  so  taken, 
drunk  and  swallowed  down  as  aforesaid,  and  of  the  said  sickness 
and  distemper  occasioned  thereby,  did  die.  And  so  the  inquest  afore- 
said, upon  their  oaths  and  solemn  allirmations  aforesaid  clo  say,  that 
the  said  Lucretia  Chapman,  otherwise  called  Lncretia  Espos  y  Mina, 
and  the  said  Lino  Amalia  Espos  y  Mina,  otherwise  called  Celestine 
Armentarius,  otherwise  called  Amalia  Gregoria  Zarrier,  him,  the 
said  William  Chapman  then  and  there  in  the  manner  and  by  the 
means  aforesaid,  feloniously,  wilfully  and  of  their  malice  aforethought, 
did  kill  and  murder,  contrary  to  the  form  of  the  act  of  the  general 
assembly  in  such  case  made  and  |)rovided,  and  against  the  peace  and 
dignity  of  the  Commonwealth  of  Pennsylvania. 

Sacond  count.  AgninsL  one  dcfandti/il  as  principal  in  tlie first,  and 
i/ic  ol/irr  (IS  privcipa/  in  Ilia  second  drirree. 

And  the  inrpiest  aforesaid,  iiuiuiring  as  aforesaid,  upon  their  oaths 
and  solciini  allirmations  aforesaid,  do  further  present,  that  the  said 
l^nrrutia  (;ii;ipnian,  otherwise  called  I^ncretia  Espos  y  Mina,  not 
having  the  fe.-ir  of  God  before  her  eyes,  but  being  moved  and  seduced 
by  the  instigation  of  the  devil  and  of  her  malice  aforethouiiht.  wick- 


V 
HOMICllsE.  59 

edly  contriving  and  intending  the  said  William  Chapman  to  deprive 
of  fiis  hfe,  and  tlie  said  William  Chapman  felonionsly  to  Icill  and 
nun-der  on  the  twentieth  day  of  June,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  thirty-one,  and  on  divers  other  days  and 
times  between  the  said  twentieth  day  of  June,  in  the  year  last  afore- 
said, and  the  twenty-third  day  of  June  in  the  same  year,  with  force 
and  arms  at  the  county  aforesaid,  and  within  the  jurisdiction  of  this 
court,  did,  feloniously,  willully  and  of  her  malice  aforethought,  mix 
and  mingle  certain  deadly  poison,  called  arsenic,  in  certain  chicken 
soup,  which  had  been  at  divers  days  and  times,  during  the  time  afore- 
said, prepared  for  the  use  of  the  said  \A'illiam  Chapman,  to  be  drunk 
by  him,  the  said  William  Chapjnan  (she,  the  said  Lucretia  Chapman, 
otherwise  called  Lucretia  Espos  y  Mina,  then  and  there  well  know- 
ing that  the  said  chicken  soup  with  which  she,  the  said  Lucretia 
Chapman,  otherwise  called  Lucretia  Espos  y  Mina,  did  so  mix  and 
mingle  the  said  deadly  poison  as  aforesaid,  was  then  and  there  pre- 
pared for  the  use  of  the  said  William  Chapman,  with  intent  to  be 
then  and  there  administered  to  him  for  his  drinking  the  same),  and 
the  said  chicken  soup  with  which  the  said  deadly  poison  was  so 
mixed  as  aforesaid,  afterwards,  to  wit,  on  the  said  twentieth  day  of 
June,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  thirty- 
one,  and  on  the  said  other  days  and  times  last  mentioned,  at  the 
county  and  within  the  jurisdiction  aforesaid,  was  delivered  to  the 
said  William  Chapman,  to  be  then  and  there  drunk  by  him,  the  said 
William  Chapman,  and  he  the  said  William  Chapman  (not  knowing 
the  said  poison  to  have  been  mixed  with  the  said  chicken  soup),  did 
afterwards,  to  wit,  on  the  said  twentieth  day  of  June,  in  the  year  last 
aforesaid,  and  on  the  said  divers  other  days  and  times  above  men- 
tioned, there  drink  and  swallow  down  into  his  body  several  quantities 
of  the  said  deadly  poison  so  mixed  as  aforesaid  with  the  said  chicken 
soup,  and  the  said  William  Chapman  of  the  poison  aforesaid,  and  by 
the  operation  thereof,  then  and  there  became  sick  and  greatly  distem- 
pered in  his  body,  of  which  said  sickness  and  distemper  of  body, 
occasioned  by  the  said  drinking,  taking  and  swallowing  down  into 
the  body  of  the  said-William  Chapman  of  the  deadly  poison  afore- 
said, so  mixed  and  mingled  in  the  said  chicken  soup  as  aforesaid,  he, 
the  said  William  Chapman,  from  the  said  several  days  and  times,  on 
which  he  had  so  taken,  drunk  and  swallowed  down  the  said  deadly 
poison  as  aforesaid,  until  the  said  twenty-third  day  of  June,  in  the 
year  last  aforesaid,  at  the  county  aforesaid,  and  within  the  jurisdic- 
tion aforesaid,  did  languish,  and  languishing  did  live,  on  which  said 
twenty-third  day  of  June,  in  the  year  last  aforesaid,  at  the  county 
aforesaid,  and  within  the  jurisdiction  aforesaid,  he  the  said  William 
Chapman,  of  the  poison  aforesaid  so  taken,  drunk  and  swallowed 
down  as  aforesaid,  and  of  the  said  sickness  and  distemper  occasioned 
thereby,  did  die.  And  that  the  said  Lino  Araalia  Espos  y  Mina, 
otherwise  called  Celestine  Armentaiiu?,  otherwise  called  Amalia 
Gregoria  Zarrier,  then  and  there  feloniously,  wilfully  and  of  his 
malice  aforethought,  was  present,  aiding  and  abetting  the  said  Lu- 
cretia Chapman,  otherwise  called  Lucretia  Espos  y  Mina,  the  felony 
and  murder  aforesaid,  in  manner  and  form  last  aforesaid,  to  do  and 


60  orrENCES  against  the  person. 

commit.  And  so  the  inquest  aforesaid,  upon  their  oaths  and  solemn 
adirniations  aforesaid  do  say,  that  the  said  Lucretia  Chapman,  other- 
M'ise  called  Lucretia  Espos  y  Mina,  and  the  said  Lino  Amalia  Espos 
y  Mina,  otherwise  called  Celestine  Armentarius,  otherwise  called 
Amalia  Gregoria  Zarrier,  him  the  said  William  Chapman,  then  and 
there,  in  the  manner  and  form  last  aforesaid,  feloniously,  wilfully  and 
of  their  malice  aforethought,  did  kill  and  murder,  contrary  to  the  form 
of  the  act  of  assembly  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  Commonwealth  of  Pennsylvania. 

Third  count  Jjgainst  one  as  principal  and  the  other  as  accessary 
before  the  fuel. 

And  the  inquest  aforesaid,  inquiring  as  aforesaid,  upon  their  oaths 
and  solemn  affirmations  aforesaid,  do  further  present,  that  the  said 
Lucretia  Chapman,  otherwise  called  Lucretia  Espos  y  Mina,  not 
having  the  fear  of  God  before  her  t'yes,  but  being  moved  and  seduced 
l>y  the  instigation  of  the  devil,  and  of  her  malice  aforethought,  con- 
triving and  intending  a  certain  William  Chapman  to  deprive  of  his 
life,  and  the  said  William  Chapman,  feloniously,  wilfully  and  of  her 
malice  aforethought,  to  kill  and  murder  with  poison,  on  the  twentieth 
day  of  June,  in  the  year  of  our  Lord  one  thousand  eiglit  hundred  and 
thirty-one,  and  on  divers  other  days  and  times,  between  tlie  said 
twentieth  day  of  June,  in  the  year  last  aforesaid,  and  the  twenty- 
third  day  of  June  in  the  same  year,  with  force  and  arms,  at  the  county 
aforesaid,  and  within  the  jurisdiction  of  this  court,  did  knowingly, 
wilfully,  feloniously  and  of  her  malice  aforethought,  mix  and  mingle 
certain  deadly  poison,  called  arsenic,  in  certain  chicken  soup,  which 
had  been  at  divers  days  and  times,  during  the  time  aforesaid,  pre- 
pared for  the  use  of  the  said  William  Chapman,  to  be  drunk  by  him, 
the  said  William  Chapman  (she,  the  said  Lucretia  Chapman,  other- 
wise called  Lucretia  Espos  y  Mina,  then  and  there,  well  knowing 
that  the  said  chicken  soup  with  which  she,  the  said  I^ucretia  Chap- 
man, otherwise  called  Lucretia  Espos  y  Mina,  did  so  mix  and  mingle 
the  said  deadly  poison  as  aforesaid,  was  then  and  there  prepared  for 
the  use  of  the  said  William  Chapman,  with  intent  to  be  then  and 
there  administered  to  the  said  William  Chapman  for  his  drinking  the 
same),  and  that  the  said  William  Chapman  afterwards,  to  wit, on  the 
twentieth  day  of  June,  in  the  year  last  aforesaid,  and  on  the  said  other 
days  and  times  last  mentioned,  at  the  couniy  aforesaid,  and  within 
t!io  jurisdiction  aforesaid,  did  take,  drink  ftnd  swallow  down  irUo  his 
body  several  (luanlitics  of  the  said  chicken  soup,  with  which  the  said 
:irseuic  was  so  mixed  and  mingled  by  the  said  Lucretia  Chapman, 
otherwise  called  Lucretia  Espos  y  Mina  as  aforesaid  (he  the  said 
William  Cliapman,  at  the  time  he  so  took,  drank  and  swallowed 
down  into  his  body  the  said  chicken  soup,  not  knowing  tliere  was 
any  arsenic  or  any  other  poisonous  or  hurtful  ingredient  mixed 
ftr  mingled  with  the  said  chicken  s<iup),  by  means  whereof  he,  the 
said  William  Chapman,  then  and  there  became  sick  and  greatly  dis- 
l(Mnpercd  in  his  body,  and  the  said  William  Chapman,  of  the  poison 
aforesaid  so  by  him  taken,  drunk  and  sv/allowed  as  aforesaid,  and  of 
the  sickness  occasioned  thereby,  from  the  said  several  days  and  times 
on  which  he,  the  said  William  Chapman,  had  so  taken,  drunk  and 


HOMICIDE.  Gl 

swallowed  down  the  same  deadly  poison  as  aforesaid,  until  the  said 
twenty-third  day  of  Jnne,  in  the  year  last  aforesaid,  at  the  county 
and  within  the  jurisdiction  aforesaid,  did  languish,  and  languishing 
did  live,  on  which  said  twenty-third  day  of  June,  in  the  year  last 
aforesaid,  at  the  county  and  within  the  jurisdiction  aforesaid,  he  the 
said  William  Chapman,  of  the  poison  aforesaid,  so  by  him  taken, 
drunk  and  swallowed  down,  and  of  the  sickness  and  distemper  occa- 
sioned thereby,  did  die. 

And  that  the  aforesaid  Lino  Amalia  Espos  y  Mina,  otherwise 
called  Celestine  Armentarius,  otherwise  called  Amalia  Gregoria 
Zarrier,  not  having  the  fear  of  God  before  his  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  before  the 
said  felony  and  murder  committed,  to  wit,  on  the  said  twentieth 
day  of  June,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  thirty-one,  at  the  county  aforesaid,  and  witliin  the  juris- 
diction of  this  court,  with  force  and  arms,  feloniously,  wilfully  and  of 
his  malice  aforethought,  did  incite,  instigate,  stir  up,  counsel,  direct, 
advise,  command,  aid,  abet,  move  and  procure  her,  the  said  Lucretia 
Chapman,  otherwise  called  Lucretia  Espos  y  Mina,  the  felony  and 
murder  aforesaid,  in  manner  and  form  atbresaid,  to  do  and  commit. 

And  so  the  inquest  aforesaid,  upon  their  oaths  and  solemn  affirma- 
tions aforesaid,  do  say,  that  the  said  Lucretia  Chapman,  otherwise 
called  Lucretia  Espos  y  Mina," him  the  said  William  Chapman,  then 
and  there,  in  manner  and  form  last  aforesaid,  feloniously,  wilfully  and 
of  her  malice  aforethought,  did  kill  and  murder,  and  that  he,  the  said 
Lino  Amalia  Espos  y  Mina,  otherwise  called  Celestine  Armentarius, 
otherwise  called  Amalia  Gregoria  Zarrier,  feloniously,  wilfully  and 
of  his  malice  aforethought,  in  manner  and  form  aforesaid,  at  the 
county  aforesaid,  and  within  the  jurisdiction  of  this  court,  her  the 
said  Lucretia  Chapman,  otherwise  called  Lucretia  Espos  y  Mina,  did 
aid,  abet,  counsel,  direct,  advise  and  instigate  the  felony  and  murder 
aforesaid,  in  manner  and  form  aforesaid,  to  commit  and  perpetrate, 
contrary  to  the  form  of  the  act  of  assembly  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  Commonwealth 
of  Pennsylvania. 

By  placing  poison  so  as  to  be  mistaken  for  medicine.(h) 

That  C.  D.,  of  said  B.,  labourer,  feloniously,  and  of  his  malice  afore- 
thought, devising  and  intending  one  E.  F.  to  poison,  kill  and  murder, 
on  the  day  of  now  last  past,  with  force  and  arms,  at  B. 

aforesaid,  in  the  county  aforesaid,  a  certain  quantity  of  arsenic,  to 
wit,  two  drachms  of  arsenic,  being  a  deadly  poison,  feloniously, 
wilfully  and  of  his  malice  aforethought,  did  put,  infuse,  mix  and 
mingle  in  and  together,  with  water,  he  the  said  C.  D.  then  and  there 
well  knowing  the  said  arsenic  to  be  a  deadly  poison;  and  that  the 
said  C.  D.  the  said  arsenic,  so  as  aforesaid  put,  infused  in  and  mixed 
and  mingled  in  and  together  with  water,  into  a  certain  glass  phial, 
did  put  and  pour;  and  the  said  glass  phial,  with  the  said  arsenic  put, 

(h)  Cro.  C.  A.  297-9 ;  2  Stark.  C.  P.  369;  Chit.  C.  L.  774;  Davis'  Piec.  183. 
6 


C2  OFFENCES  AGAIiVST  THE  PERSOJT. 

infused  in  and  mixed  and  mingled  in  and  together  with  water  as 
aforesaid  contained  therein,  then  and  there,  to  wit,  on  the 
,day  of  in  the  year  aforesaid,  with  force  and  arms,  at  B.  afore- 

said, feloniously,  wilfully  and  of  his  malice  aforethought,  in  the 
lodging  room  of  the  said  E.  F.  did  put  and  place,  in  the  place  and 
stead  of  a  certain  salutary  medicine  then  lately  before  prescribed 
and  made  up  for  the  said  E.  F.,  and  to  be  taken  by  him  the  said  E. 
F.,  he  the  said  C.  D.  then  and  there  feloniously,  wilfully  and  of  his 
malice  aforethought,  intending  that  the  said  E.F.  should  drink  and 
swallow  down  into  his  body  the  said  arsenic,  put,  infused,  mixed 
and  mingled  in  and  together  with  water  as  aforesaid,  contained  in 
the  said  glass  phial,  by  mistaking  the  same  as  and  for  the  said  salutary 
medicine,  so  prescribed  and  made  up  for  the  said  E.  F.,  and  to  be  by 
him  the  said  E.  F.  taken  as  aforesaid.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  the  said  E.  F.,  not 
knowing  the  said  arsenic,  put,  infused  in  and  mixed  together  with 
water  as  aforesaid,  contained  in  the  said  glass  phial,  so  put  and 
placed  by  the  said  C.  D.,  in  the  lodging  room  of  the  said  E.  F.,  in 
the  place  and  stead  of  the  said  salutary  medicine,  then  lately  before 
prescribed  and  made  up  for  the  said  E.  F.,  to  be  taken  by  him  the 
said  E.  F.,  in  manner  aforesaid,  to  be  a  deadly  poison,  but  believing 
the  same  to  be  the  true  and  real  medicine,  then  lately  before  pre- 
scribed and  made  up  for,  and  to  be  taken  by  him  the  said  E.  F., 
afterwards,  to  wit,  on  the  same  day  of  in  the  year  afore- 

said, at  B.  albresaid,  the  said  arsenic,  so  as  aforesaid  put,  infused  in 
and  mixed  together  with  water,  by  the  said  C.  D.,  as  aforesaid,  con- 
tained in  the  said  glass  phial,  so  put  and  placed  by  the  said  C.  D.,  in 
the  lodging  room  of  him  the  said  E.  F.  in  the  place  and  stead  of  the 
said  medicine,  then  lately  before  prescribed  and  made  up  for  the  said 
E.  F.,  he  the  said  E.  F.  did  take,  drink  and  swallow  down  into  his 
body;  by  means  of  which  said  taking,  drinking  and  swallowing 
down  into  the  body  of  him  the  said  E.  F.  of  the  said  arsenic,  so  as 
aforesaid  put,  infused  in  and  mixed  together  with  water  by  the  said 
C.  D.  as  aforesaid,  he  the  said  E.  F,  then  and  there  became  sick  and 
distempered  in  his  body;  of  which  sickness  and  distemper  of  body, 
occasioned  by  the  said  taking,  drinking  and  swallowing  down  into 
the  body  of  him  the  said  E.  F.,  and  of  the  said  arsenic,  so  as  aforesaid 
put,  infused  in  and  mixed  together  with  water  by  the  said  C.  D.  as 
aforesaid,  he  the  said  E.  F.  on  the  said  day  of  in  the 

year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  died.  Anil 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  C.  1).  him  the  said  E.  F.,  in  manner  and  form  aforesaid,  fe- 
loniously, wilfully  and  of  his  maUce  aforethought,  did  poison,  kill 
and  murder.     i^Cojiclude  us  in  book  1,  chapter  3). 

Murder  of  a  child  hy  poison.{{) 
That  C.  M.,&c.,  contriving  and  intending  to  kill  and  murder  one  G. 

■i)  n.  V.  Miclmfl,  0  C.  Sl  p.  3r>G;  2  Moorl.  C.  C.  120.     Tlir  prisoner  purchnpcd  a  hottic 
of  iaudiiiiuii),  aficl  directed  itic  person  who  liad  chiii^^t-  of  tlic  cliild  to  give  it  a  teaspoonl'ul 


HOMICIDE.  G3 

]VI.,&.c.,on  the  thirty-firstday  of  March,  in  the  third  year  of  the  reign  of 
her  present  majesty,  upon  the  said  G.  M.,  feloniously,  &c.,  did  make  an 
assault,  and  that  tlie  said  C.  M.,  a  large  quantity,  to  wit,  iialf  an  ounce 
weight,  of  a  certain  deadly  poison  called  laudanum,  feloniously,  <S:c., 
did  give  and  administer  unto  the  said  G.  M.  with  intent  that  he 
should  take  and  swallow  the  same  down  into  his  body  (she  the  said  C. 
M,  then  and  there  well  knowing  the  said  laudanum  to  be  a  deadly  poi- 
son), and  the  said  G,  M.  the  said  laudanum  so  given  and  administered 
unto  him  by  the  said  C.M.  as  aforesaid,  did  take  and  swallow  down  into 
liis  body:  by  reason  and  by  means  of  whicli  said  taking  and  swallow- 
i)ig  down  the  said  laudanum  into  his  body,  as  aforesaid,  the  said  G. 
M.  became  and  was  mortally  sick  and  distempered  in  his  body,  of 
which  said  mortal  sickness  and  distemper  the  said  G.  M.  from,  &c., 
till,  &c.,  did  languish,  &c.,  and  died;  {and  concluding  in  the  usual 
form,  ds  in  cases  of  murder). 

By  mixing  white  arsenic  with  wine,  and  sending  it  to  deceased,  ^c.{j) 

That  A.  B.,  late  of  &c.,  of  his  malice  aforethought,  contriving  and 
intending  one  C.  D.,  with  poison,  feloniously  to  kill  and  murder,  on 

with  force  and  arms,  at  a  large  quantity  of  white  arsenic, 

being  a  deadly  poison,  with  a  certain  quantity  of  wine,  feloniously, 
wilfully  and  of  his  malice  aforethought,  did  mix  and  mingle;  he  the 
said  A.  B.  then  and  there  well  knowing  the  said  white  arsenic  to  be 
a  deadly  poison;  and  that  the  said  A.  B.  afterwards,  to  wit,  on  the 

day  of  at  aforesaid,  the  poison  aforesaid,  so  as 

aforesaid  mixed  and  mingled  with  the  wine  aforesaid,  feloniously, 
wilfully  and  of  his  malice  aforethought,  did  send  to  her  the  said  C. 
D.  to  take,  drink  and  swallow  down;  and  that  the  said  C.  D.,  not 
knowing  the  poison  aforesaid  in  the  wine  aforesaid  to  have  been 
mixed  and  mingled  as  aforesaid,  afterwards,  to  wit,  on  at 

aforesaid,  the  said  poison,  so  as  aforesaid  mixed  and  mingled,  by  the 
persuasion  and  procurement  of  the  said  A,  B.,  did  take,  drink  and 
swallow  down;  and  thereupon  the  said  C.  D.,  by  the  poison  afore- 
said, so  mixed  and  mingled  as  aforesaid  by  the  said  A.  B.,  and  so 
taken,  drank  and  swallowed  down  as  aforesaid,  became  then  and 
there  sick  and  distempered  in  her  body,  and  the  said  C.  D.  of  the 
poison  aforesaid,  and  of  the  sickness  and  distemper  occasioned  there- 
by, from  the  said  day  of  until  the  day  of  at 

aforesaid,  in  the  county  aforesaid,  did  languish,  and  languish- 
ing, did  live;  on  which  said  day  of  she  the  said  C.  D.,  at 

aforesaid,  in  the  county  aforesaid,  of  the  poison  aforesaid,  and 
of  the  sickness  and  distemper  thereby  occasioned  as  aforesaid,  died. 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  A.  B.  her  the  said  C.  D.,  in  manner  and  form,  and  by  the 
means  aforesaid,  then  and  there  feloniously,  wilfully  and  of  his 
malice  aforethought,  did  kill  and  murder.  {Conclude  as  in  book 
1,  chapter  3). 

every  niffht.    That  person  did  not  do  so,  but  another  child  g^ot  hold  of  the  poison,  and  travo 
it  to  the  deceased,  who  died  of  it.    A  conviction  was  sustained  by  tlie  judirc.^. 
0)  3  Chit.  C.  L.  776  ;  Davis'  Prec.  185. 


64  OFFENCES  AGAINST  THE  PERSON. 

Murder  by  poisoning.    Fi7'st  count,  mixing  ichite  arsenic  in  chocolate,  {h) 

That  J.  E.,  late  of  Lycoming  County  aforesaid,  labourer,  not  hav- 
ing the  fear  of  God  before  his  eyes,  but  being  moved  and  seduced  by 
the  instigations  of  the  devil,  and  of  his  mahce  aforethought,  wickedly 
contriving  and  intending  a  certain  C.  E.  with  poison,  wilfully,  felo- 
niously and  of  his  malice  aforethought,  to  kill  and  murder,  on  the  four- 
teenth day  of  October,  in  the  year  of  our  Lord  one  thousand  eight 
lumdred  and  thirty-five,  and  on  divers  other  days  and  times  between 
the  said  fourteenth  day  of  October,  in  the  year  last  aforesaid,  and  the 
seventeenth  day  of  October,  in  the  year  last  aforesaid,  with  force  and 
arms,  at  Lycoming  County  aforesaid,  did,  knowingly,  wilfully  and 
feloniously,  and  of  his  malice  aforethought,  put,  mix  and  mingle  cer- 
tain deadly  poison,  to  wit,  white  arsenic,  in  certain  chocolate  which 
had  been  at  divers  days  and  times  during  the  time  aforesaid,  pre- 
pared for  the  use  of  the  said  C.  E.,  to  be  drunk  by  her  the  said  C.  E. ; 
he  the  said  J.  E.,  then  and  there  well  knowing  that  the  said  choco- 
late with  which  he  the  said  J.  E.  did  so  mix  and  mingle  the  deadly 
poison  as  aforesaid,  was  then  and  there  prepared  for  the  use  of  the 
said  C.  E.,  with  intent  to  be  then  and  there  administered  to  her  for 
her  drinking  tlie  same;  and  the  said  chocolate  with  which  the  said 
poison  was  so  mixed  as  aforesaid,  afterwards,  to  wit,  on  the  said 
fourteenth  day  of  October,  in  the  year  last  aforesaid,  and  on  the  said 
other  days  and  times,  at  Lycoming  County  aforesaid,  was  delivered 
to  the  said  C.  E.,  to  be  then  and  there  drunk  by  her;  and  the  said  C. 
E.,  not  knowing  the  said  poison  to  have  been  mixed  with  the  said 
chocolate,  did  afterwards,  to  wit,  on  the  said  fourteenth  day  of  Octo- 
ber, in  the  year  last  aforesaid,  and  on  the  said  divers  other  days  and 
times  there,  drink  and  swallow  down  into  her  body,  several  quan- 
tities of  the  said  poison  so  mixed  as  aforesaid  with  the  said  chocolate; 
and  the  said  C,  E.,  of  the  poison  aforesaid,  and  by  the  operation 
thereof,  on  the  said  fourteenth  day  of  October,  in  the  year  last  afore- 
said, at  Lycoming  County  aforesaid,  became  sick  and  greatly  dis- 
tempered in  her  body  ;  of  which  said  sickness  and  distemper  of  body, 
occasioned  by  the  drinking,  taking  and  swallowing  down  into  the 
body  of  the  said  C.  E.  of  the  poison  aforesaid,  so  mixed  and  mingled 
in  the  said  chocolate  as  aforesaid,  she  the  said  C.  E.,  from  the  said 
several  days  and  times  on  which  she  had  so  drunk  and  swallowed 
down  the  same  as  aforesaid,  until  the  sixteenth  day  of  October,  in 
the  year  last  aforesaid,  at  Lycoming  County  aforesaid,  did  languish 
and  languishing  did  live ;  on  which  said  sixteenth  day  of  October,  in 
the  year  last  aforesaid,  at  Lycoming  Comity  aforesaid,  she,  the  said 
C.  E.  of  the  poison  aforesaid,  so  taken,  drunk  and  swallowed  down 
as  aforesaid,  and  of  the  said  sickness  and  disteniper  thereby  occa- 
sioned, did  die. 

And  so  the  inquest  aforesaid,  upon  their  oaths  and  affirmations 
respectively  as  aforesaid,  do  say,  that  the  said  J.  E.,  her  the  said  C. 
E.,  in  the  maimer  and  by  the  means  aforesaid,  then  and  there  felo- 
niou.sly,  wilfully  and  of  his  malice  aforethought,  did  kill  and  murder, 

(A)  Cqio.  v.  Eailf,  1  Whart.  525.     Under  tliis  indictment  the  prisoner  was  executed. 


HOMICIDE. 


es 


contrary  to  the  form  of  the  act  of  general  assembly  of  this  comnion- 
weakh  in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  Commonweahh  of  Pennsylvania. 

Second  count.    Alixing  arsenic  in  tea. 

And  the  jurors  aforesaid,  upon  their  oaths  and  affirmations  respec- 
tively as  aforesaid,  do  further  present  that  the  said  J.  E.,  on  the  said 
fourteenth  day  of  October,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  thirty-five  as  aforesaid,  and  on  divers  other  days 
and  times  between  the  said  fourteenth  day  of  October,  in  the  year 
last  aforesaid,  and  the  sixteenth  day  of  October,  in  the  year  last 
aforesaid,  at  Lycoming  County  aforesaid,  with  force  and  arms  did, 
icnowingly,  wilfully,  feloniously  and  of  his  malice  aforethought,  place, 
mix  and  mingle  certain  deadly  poison,  to  wit,  white  arsenic,  in  cer- 
taift  tea  which  had  been  at  divers  days  and  times  during  the  time 
aforesaid,  prepared  for  the  use  of  the  said  C.  E.,  to  be  drunk  by  her 
the  said  C.  E. ;  he  the  said  J.  E.,  then  and  there  well  knowing  that 
the  said  tea  with  which  the  said  poison  was  mixed  as  aforesaid,  was 
then  and  there  prepared  for  the  use  of  the  said  C.  E.,  with  intent  to 
be  then  and  there  administered  to  her  for  her  drinking  the  same. 
And  the  said  tea  with  which  the  said  poison  was  so  mixed  as  afore- 
said, afterwards,  to  wit,  on  the  said  fourteenth  day  of  October,  in  the 
year  last  aforesiad,  and  on  the  said  other  days  and  times,  at  Lycom- 
ing County  aforesaid,  was  delivered  to  the  said  C.  E.  to  be  then  and 
there  drunk  by  her;  and  the  said  C.  E.,  not  knowing  the  said  poison 
to  have  been  mixed  with  the  said  tea,  did  afterwards,  to  wit,  on  the 
said  fourteenth  day  of  October,  in  the  year  last  aforesaid,  and  on  the 
said  divers  other  days  and  times,  there  did  drink  and  swallow  down 
into  her  body,  several  quantities  of  the  said  poison  so  mixed  as  afore- 
said with  the  said  tea ;  and  the  said  C.  E.,  of  the  poison  aforesaid, 
and  by  the  operation  thereof,  on  the  said  fourteenth  day  of  October, 
in  the  year  last  aforesaid,  at  Lycoming  County  aforesaid,  became 
sick  and  greatly  distempered  in  her  body  ;  of  which  said  sickness  and 
distemper,  occasioned  by  the  drinking,  taking  and  swallowing  down 
into  the  body  of  the  said  C.  E.  of  the  poison  aforesaid,  so  mixed  and 
mingled  in  the  said  tea  as  aforesaid,  she  the  said  C.  E.,  from  the  said 
several  days  and  times  on  which  she  had  so  drunk  and  swallowed 
down  the  same  as  aforesaid,  until  the  said  sixteenth  day  of  October, 
in  the  year  last  aforesaid,  at  Lycoming  County  aforesaid,  did  lan- 
guish and  languishing  did  live  ;  on  which  said  sixteenth  day  of  Oc- 
tober, in  the  year  last  aforesaid,  at  Lycoming  County  aforesaid,  she, 
the  said  C.  E.,  of  the  poison  aforesaid,  so  taken,  drunk  and  swallowed 
down  as  aforesaid,  and  of  the  sickness  and  distemper  thereby  occa- 
sioned, did  die. 

And  so  the  inquest  aforesaid,  upon  their  oaths  and  affirmations 
respectively  as  aforesaid,  do  say,  that  the  said  J.  E.,  her,  the  said  C. 
E.,  in  the  manner  and  by  the  means  last  aforesaid,  then  and  there 
feloniously,  wilfully  and  of  his  mahce  aforethougiit,  did  kill  and  mur- 
der, contrary  to  the  form  of  the  act  of  general  assembly  of  this  com- 
monwealth in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  Commonwealth  of  Pennsylvania. 


68  OFFENCES  AGAINST  THE  PERSON. 


Murder  hi/  giviiig  to  the  deceased  poison,  and  thereby  aiding  her  in 
siticide.(l) 

That  B.  A.,  on  the  twenty-eighth  of  February,  at  St.  Leo- 
nard, Shoreditch,  upon  E.  C,  "feloniously,  wilfully  and  of  his  malice 
aforethought,  did  make  an  assault,  and  feloniously,  wilfully  and  of 
his  malice  aforethought,  did  give  and  administer  to  her  two  ounces 
weight  of  a  deadly  poison  called  laudanum,  with  intent  that  she 
should  take  and  swallow  the  same  down  into  her  body,  (he  know- 
ing the  same  to  be  a  deadly  poison);  and  that  the  said  E.  C,  the  said 
laudanum  so  administered,  did  take  and  swallow  down  into  her 
body,  and  by  reason  thereof  became  mortally  sick  and  distempered 
in  her  body,  and  of  such  mortal  sickness  and  distemper  then  and 
there  died."    [Conclude  as  usual,  4'C.). 


(/)  R.  V.  Alison,  8  C.  &  P.  418.  As  has  already  been  observed,  (see  ante,  p.  38),  a 
party  who  is  present  aiding  in  the  commission  of  suicide,  becomes  a  principal  in  the  of- 
fence, and  may  be  indicted  for  the  murder  of  the  deceased,  though  tiie  courts  in  England 
and  in  Massachusetts  ditfer  as  to  whether  there  can  be  accessaries  before  tiie  fact  to 
suicide  at  common  law.  Patteson  J.,  in  summing  up  in  the  present  case,  after  stating 
the  indictment,  said: — "This  case  undoubtedly  presents  some  extraordinary  features. 
There  is  an  old  case  which  occurred  as  far  back  as  the  reign  of  James  I.,  which  was  very 
similar  to  the  present.  In  that  case  a  husband  and  wife,  being  in  extreme  poverty  and 
great  distress  of  mind,  were  conversing  together  on  their  unfortunate  condition,  when  the 
husband  said  'I  am  weary  of  life  and  will  destroy  myself,'  upon  which  the  wife  replied, 
'  if  you  do  I  will  too.'  The  man  then  went  out,  and  having  bought  some  poison  he  mixed 
it  with  some  drink,  and  they  both  partook  of  it.  The  draught  was  fatal  to  the  husband, 
but  the  wife,  in  her  agony  from  the  effect  of  the  poison,  seized  a  flask  of  salad  oil  and 
drank  it  off,  which  caused  a  sickness  of  the  stomach,  and  the  consequence  wa»  that  she 
voided  the  poison,  and  her  life  was  saved.  She  was  afterwards  tried  for  the  murder  of 
her  husband  in  tliis  very  court  and  acquitted,  but  solely  on  the  ground  that  being  the  wife 
of  the  deeeascdj  she  was  under  his  control :  and  inasmuch  as  the  proposal  to  commit  sui- 
cide had  been  first  suggested  by  him,  it  was  considered  that  she  was  not  a  fuee  agent,  and 
therefore  tlie  jury,  under  the  direction  of  the  judge  who  tried  the  case,  pronounced  her 
not  guilty.  I'here  is  also  another  case  which  occurred  not  very  long  since,  which  still 
more  nearly  resembles  the  present ;  (R.  ».  Dyson,  R.  &.  R.  528,  set  out  in  Rose. 
C.  D.  616).  It  was  the  case  of  a  man  and  woman  who  lived  together,  but  were  not  mar- 
ried. They  were  in  great  poverty,  and  having  formed  a  determination  to  destroy  them- 
selves, they  went  to  the  theatre,  and  afterwards  proceeded  together  to  Westminster  bridge 
where  tliey  got  into  a  boat,  but  the  water  being  shallow  they  entered  another,  where  they 
had  conversed  together  for  some  time,  when  on  a  sudden,  according  to  tlie  statement  of 
the  man,  lie  saw  the  woman  struggling,  and  plunged  in  for  the  purpose  of  rescuing  her ; 
but  he  failed  in  his  attempt.  The  woman  was  drowned,  and  he  was  tried  for  her  murder 
and  convicted.  The  case  was,  however,  subsequently  referred  to  the  judges,  wlio  were 
of  Q[)inion  tiiat  the  conviction  was  good  in  point  of  law  ;  but  as  there  was  some  doubt 
whether  the  woman  miglit  not  have  fallen  into  the  water  by  accident,  and  whether  the 
prisoner  might  not,  as  he  had  stated,  have  endeavoured  to  save  her  life,  he  iiad  the  benefit 
of  the  doubt,  and  was  recommended  for  a  pardon.  After  these  two  cases  I  should  not  be 
discharging  my  duty  if  I  did  not  tell  you  liiat  supposing  the  parties  in  this  case  mutually 
agreed  to  commit  suicide,  and  one  only  accoini)lished  that  object,  the  survivor  will  be  guilty 
of  murder  in  jwintof  law.  It  may  be  said  that  tliey  were  both  under  tiie  influence  of  what  is 
called  'lcm[)orary  insanity,'  and  a  practice  has  of  late  years  been  pursued  by  coroner's 
juries,  of  finding  verdicts  to  that  effect  in  cases  which  do  not  at  all  justify  such  a  conclu- 
bion.  As  a  lawyer  1  am  bound  to  say  tiiat  such  verdicts  arc  wholly  unwarranted  by  the 
law  of  this  country.  His  lordshi[),  in  conclusion  told  the  jury  that,  in  his  opinion,  there 
wa«  not  any  evidence  to  show  that  the  i)ris()ner  was  not  in  his  |)erfcct  senses,  and  if  they 
were  of  the  same  ojiinion,  he  would  be  legally  responsible  for  the  death  of  tiic  deceased," 
Verdict — guilty. 


HOMICIDE.  67 

By  forcing  a  sick  person  into  the  streets.{ic) 

That  A.  B.,  of  &c.,  intending  one  C.  D,  feloniously,  wilfully  and 
of  his  malice  aforethought,  to  kill  and  murder,  on  at  with 

force  and  arms,  at  an  unseasonable  hour  in  the  night,  to  wit,  about 
the  hour  of  eleven  in  the  night  of  the  same  day,  in  and  upon  the  said 
C.  D.,  he  the  said  C.  D.  then  and  there  being  in  extreme  sickness  and 
weakness  of  body,  occasioned  by  a  fever,  and  then  and  there  confined 
to  his  bed  in  the  dwelling  house  of  him  the  said  A.  B.  there  situate, 
feloniously,  wilfully  and  of  his  malice  aforethought,  did  make  an 
assault;  and  that  the  said  A.  B.  liim  the  said  C.  D.  from  and  out  of 
the  said  bed,  and  also  out  of  the  said  dwelling  house,  into  the  public 
and  open  street  there,  did  then  and  there  feloniously,  wilfully  and  of 
his  malice  aforethought,  remove,  force  and  drive,  and  there  abandon 
and  leave;  he  the  said  A.  B.  then  and  there  well  knowing  the  said 
C.  D.  to  be  then  in  extreme  sickness  and  weakness  of  body,  occasioned 
by  the  fever  aforesaid;  by  means  whereof,  he  the  said  C.  D.,  through 
the  cold  and  the  inclemency  of  the  weather,  and  for  want  of  due  care 
and  other  necessaries  requisite  for  a  person  in  such  sickness  and 
weakness  as  aforesaid,  then  and  there  died;  and  so  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say,  that  the  said  A.  B.,  him  the 
said  C.  D.,  in  manner  and  form  aforesaid,  feloniously,  wilfully  and 
of  his  malice  aforethought  did  kill  and  murder. 

Murder  of  an  infant  by  svffocation.{n) 

That  on  the  twenty-sixth  day  of  June,  &c.,  M.  H.  &c.,  {setting 
forth  ad  (lit  ian,  birth  of  child,  Sf'C,  ajid  proceeding):  on  the  said 
child  "did  make  an  assault;  and  that  the  said  M.  H.,  her  the  said 
new-born  child,  with  both  her  hands  in  a  certain  piece  of  flannel 
of  no  value,  then  and  there  feloniously,  wilfully  and  of  her  malice 
aforethought,  did  wrap  up  and  fold,  by  means  of  which  said  wrap- 
ping up  and  folding  the  said  new-born  female  bastard  child  in  the 
piece  of  flannel  aforesaid,  she  the  said  new-born  female  child  was 
then  and  there  suffocated  and  smothered ;  of  which  said  suff'ocation 
and  smothering  she  the  said  new-born  female  child,  then  and  -there 
instantly  died ;  and  so  the  jurors  aforesaid,"  &c. 

Murder  by  stamping,  beating  and  kicking. 

That  T.  V.  Jr.,  late  of  the  said  county,  yeoman,  not  having  the 
fear  of  God  before  his  eyes,  but  being  moved  and  seduced  by  the 
instigation  of  the  devil,  on  the  eleventh  day  of  October,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  fifteen,  at  the  said 
County  of  Chester,  in  and  upon  one  N.  R.,  in  the  peace  of  God  and 
the  commonwealth,  then  and  there  being,  feloniously,  wilfully  and 
of  his  malice  aforethought,  did  make  an  assault;  and  that  the  said  T. 

(m)  3  Chit.  C.  L.  771 ;  Davis'  Prec.  189. 

(n)  R.  V.  Hug^ins,  3  C.  &,  P.  414.  Three  exceptions  were  taken  to  this  inquisition: 
1st,  that  tlie  time  was  in)perfectiy  stated;  Od,  that  there  was  no  imputation  to  the  prisoner 
of  any  act  sufficient  to  cause  death  ;  and  3d,  that  liiere  was  a  variance  in  tlie  name  of  one 
of  the  irrand  jury.  Vaughan  IJ.  quashed  the  inquisition  on  the  latter  ground,  holding  that 
tlie  indictment  was  itself  good. 


69  OFFENCES  AGAINST  THE  PERSON. 

V.  Jr.,  then  and  there  with  both  his  hands,  the  said  N.  R.,  in  and 
upon  the  head,  neck  and  breast  of  him  the  said  N.  R.,  feloniously, 
wilfully  and  of  his  malice  aforethought  did  strike  and  beat;  and  that 
the  said  T.  V.  Jr.,  then  and  there,  with  both  his  hands  and  feet,  the 
said  N.  R.  so  and  upon  the  ground,  feloniously,  wilfully  and  of  his 
malice  aforethought  did  knock,  cast  and  throw ;  and  the  said  N.  R., 
to  on  the  ground  lying  and  being,  he  the  said  T.  V.  Jr.,  with  both 
his  hands,  knees  and  feet,  in  and  upon  the  head,  neck,  breast,  sto- 
mach, back  and  sides  of  him  the  said  N.  R.,  did  then  and  there  felo- 
niously, wilfully  and  of  his  malice  aforethought,  strike,  beat,  press 
and  kick ;  and  that  the  said  T.  V.  Jr.,  then  and  there  the  said  N.  R., 
by  and  upon  the  neck  and  throat  of  him  the  said  N.  R.,  with  both 
the  hands  of  him  the  said  T.  V.  Jr.,  did  feloniously,  wilfully  and  of 
his  malice  aforethought  grasp  and  seize,  thereby  choking  and  strang- 
ling the  said  N.  R.,  and  by  the  said  striking,  beating,  casting,  throvv- 
ing,  pressing  and  kicking,  giving  to  the  said  N.  R.  several  mortal 
bruises;  of  which  said  several  mortal  bruises, choking  and  strangling, 
the  said  N.  R.  then  and  there  instantly  died. 

And  so  the  inquest  aforesaid,  on  their  oaths  and  affirmations  afore- 
said, do  say  that  the  said  T.  V.  Jr.,  the  day  and  year  aforesaid,  at 
Chester  County  aforesaid,  in  manner  and  form  aforesaid,  the  said  N. 
R.,  feloniously,  wilfully  and  of  his  malice  aforethought  did  kill  and 
murder,  contrary  to  the  form  of  the  act  of  general  assembly  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity  of  the 
Commonwealth  of  Pennsylvania. 

Murder  by  heating  icitli  fists  and  lacking  on  the  ground,  no  mortal  wound 
being  discovered.{o) 

That  W.  W.,  late  of,  &c.,  on,  &c.,  at,  &c.,  with  force  and  arms,  at 
aforesaid,  &c.,  in  and  upon  one  E.  D.,  in  the  peace  of  God  and 
the  said  commonwealth,  then  and  there  being,  feloniously,  wilfully 
and  of  his  malice  aforethought,  did  make  an  assault;  and  that  the 
said  W.  W.  then  and  there  feloniously,  wilfully  and  of  his  malice 
aforethought  did  strike,  beat  and  kick  the  said  E.  D.  with  his  hands 
and  feet  in  and  upon  the  head,  breast,  back,  belly,  sides  and  other 
parts  of  the  body  of  him  the  said  E.  D.,  and  did  then  and  there  felo- 
niously, wilfully  and  of  his  malice  aforethought,  cast  and  throw  the 
said  E.  D.  down  unto  and  upon  the  ground  with  great  force  and  vio- 
lence there,  giving  unto  the  said  E.  D.  then  and  there,  as  well  by  the 
beating,  striking  and  kicking  of  him  the  said  E.  D.  in  manner  and 
form  aforesaid,  as  by  the  casting  and  throwing  of  him  the  said  E.  D. 
down  as  aforesaid,  several  mortal  strokes,  wounds  and  bruises  in  and 
upon  the  head,  breast,  back,  belly,  sides  and  other  parts  of  the  body 
ol'  him  the  said  E.  D.,  of  which  said  mortal  strokes,  wounds  and 
bruises  he  the  said  E.  D.  from,  &c.,  until,  &c.,  at,  &c.,  did  languish,  and 
languishing  did  live;  on  which  said  day  of  ,  in  the  year 

aforesaid,  the  said  E.  D.  at,  &c.,  of  the  several  mortal  strokes,  wounds 
and  bruises  aforesaid,  died.    And  so  the  jurors  aforesaid,  upon  their 

(o)  Stark.  C.  p.  419. 


HOMICIDE.  69 

oath  aforesaid,  do  say,  that  the  said  W.  W.  him  the  said  E.  D.  in  the 
manner  and  by  the  means  aforesaid,  feloniously,  wilfully  and  of  his 
malice  aforethought,  did  kill  and  murder,  contrary,  &c. 

For  stabbing,  casting  into  the  sea  and  droicning  the  deceased  on  the 

high  sea,  ^c.{p) 

The  jurors,  &c.,  upon  their  oath  present,  that  A.  B.,  (and  others, 
naming  them),  being  citizens  of  the  United  States,  on  upon 

the  high  sea,  out  of  the  jurisdiction  of  any  particular  state,  in  and  on 
board  a  certain  schooner,  the  name  of  which  is  to  the  jurors  afore- 
said unknown,  in  and  upon  one  C.  D.,  a  mariner  in  and  on  board 
said  vessel,  piratically  and  feloniously  did  make  an  assault,  and  that 
he  the  said  A.  B.,  with  a  certain  steel  dagger,  which  he  the  said  A. 

B.  in  his  hand  then  and  there  had  and  held,  the  said  C.  D.,  in  and 
upon  the  breast  of  him  the  said  C.  D.,  upon  tlie  high  sea,  and  on  board 
the  schooner  aforesaid,  and  out  of  the  jurisdiction  of  any  particular 
state,  piratically  and  feloniously  did  strike  and  thrust,  giving  to  the 
said  C.  D.  in  and  upon  the  breast  of  him  the  said  C.  D.,  upon  the 
high  sea  aforesaid,  in  and  on  board  the  said  schooner,  and  out  of  the 
jurisdiction  of  any  particular  state,  piratically  and  feloniously,  in  and 
upon  the  breast  of  him  the  said  C.  D,  several  grievous,  dangerous 
and  mortal  wounds;  and  did  then  and  there,  in  and  on  board  the 
schooner  aforesaid,  upon  the  high  sea,  and  out  of  the  jurisdiction  of 
any  particular  state,  piratically  and  feloniously,  him  the  said  C.  D. 
cast  and  throw  from  out  of  the  said  schooner  into  the  sea,  and  plunge, 
sink  and  drown  liini  in  the  sea  aforesaid;  of  which  said  mortal 
wounds,  casting,  throwing,  plunging,  sinking  and  drowning,  the  said 

C.  D.,  in  and  upon  the  high  sea  aforesaid,  out  of  the  jurisdiction  of 
any  particular  state,  then  and  there  instantly  died.  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  by  reason  of  the 
casting  and  throwing  the  said  C.  D.  in  the  sea  as  aforesaid,  they  can- 
not describe  the  said  mortal  wounds.  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  A.  B.  (and  othey^s), 
him  the  said  C.  D.,  then  and  there,  upon  the  high  sea  aforesaid,  out 
of  the  jurisdiction  of  any  particular  state,  in  manner  and  form  afore- 
said, piratically  and  feloniously  did  kill  and  murder ;  against  the 
peace  of  the  said  United  States,  and  contrary  to  the  form  of  the  sta- 
tute thereof  in  such  case  made  and  provided. 

Knocking  to  the  ground,  and  beating,  kicking  and  wounding.{q) 

That  R.  M.,  late  of  the  parish  of  Wakefield  in  the  County  of  York, 
labourer,  and  B.  M.,  late  of  the  same  place,  labourer,  not  hav- 
ing the  fear  of  God  before  their  eyes,  but  being  moved  and  se- 
duced by  the  instigation  of  the  devil,  on  the  thirtieth  day  of  Septem- 
ber, in  the  fifth  year  of  the  reign  of  our  sovereign  lord  George  the 
fourth,  by  the  grace  of  God,  of  the  United  Kingdom  of  Great  Britain 

(/))  Davis'  Prec.  228.     This  was  the  form  in  U.  S.  v.  Flohncs,  5  Wheat.  412. 
(y)   R.  V.  Moslt-y,  1  Mood.  C.  C.  98.     This  form  was  fiustaincd  by  the  twelve  jado^os,  it 
being  held  tliut  it  is  not  necessary  to  set  fortli  the  length,  deptli,  or  breadth  of  the  wound. 


70  OFFEVCES  AGAIiVST  THE  PERSON". 

and  Ireland,  king,  defender  of  the  faith,  with  force  and  arms  a1  the 
parish  aforesaid,  in  the  connty  aforesaid,  in  and  upon  one  J.  D.,  in 
the  peace  of  God  and  our  said  lord  the  king,  then  and  there  being, 
feloniously,  wilfnlly  and  of  their  malice  aforethought,  did  make  an 
assault,  and  that  they  the  said  R.  M.  and  B.  M.,  then  and  there  felo- 
niously, wilfnlly  and  of  their  malice  aforethought,  did  with  great 
force  and  violence,  pull,  push,  cast  and  throw  the  said  J.  D.,  down 
unto  and  upon  the  ground  there,  and  that  the  said  R.  M.  and  B.  M., 
with  both  the  hands  and  feet  of  them  the  said  R.  M.  and  B.  M.,  then 
and  there,  and  whilst  the  said  J.  D.  was  so  lying,  and  being  upon  the 
ground,  him  the  said  J.  D.,  in  and  upon  the  head,  stomach,  breast, 
belly,  back  and  sides  of  him  the  said  J.  D.,  then  and  there  feloniously, 
wilfully  and  of  their  malice  aforethonght,  divers  times  with  great 
force  and  violence,  did  strike,  beat  and  kick,  and  that  the  said  R.  M. 
and  B.  M.,  with  both  the  hands,  feet  and  knees  of  them  the  said  R. 
M.  and  B.  M.,  and  each  of  them  then  and  there,  and  whilst  the  said 
J.  D.  was  so  lying  and  being  upon  the  ground  as  aforesaid,  him  the 
said  J.  D.,  in  and  upon  the  belly,  head,  stomach  and  sides  of  him  the 
said  J.  D.,  then  and  there  feloniously,  wilfully  and  of  their  malice 
aforethonght,  did  with  great  force  and  violence  strike,  push,  press 
and  sqneeze,  giving  to  the  said  J.  D.,  then  and  there,  as  well  by  the 
pullin'g,  pushing,  casting  and  throwing  of  him  the  said  J.  D.  down 
unto  and  npon  the  ground  as  aforesaid,  and  by  the  striking,  beating 
and  kicking  of  him  the  said  J.  D.,  whilst  he  was  so  lying  and  being 
upon  the  gronnd  as  aforesaid,  in  and  upon  the  head,  stomach,  breast, 
belly,  back  and  sides  of  him  the  said  J.  D.  as  aforesaid,  as  also  by 
the  striking,  pushing,  pressing  and  squeezing  of  him  the  said  J,  D. 
whilst  he  the  said  J.  D.  was  so  lying  and  being  upon  the  ground  as 
aforesaid,  in  and  upon  the  belly,  breast,  stomach  and  sides  of  him  the 
said  J.  D.,  with  the  hands,  knees  and  feet  of  them  the  said  R.  M.  and 
B.  M.,  in  manner  aforesaid,  several  mortal  bruises,  lacerations  and 
wounds,  in  and  upon  the  belly,  breast,  stomach  and  sides  of  him  the 
said  J.  D.,  of  which  said  several  mortal  bruises,  lacerations  and 
wounds  the  said  J.  D.,  from  the  said  thirtieth  day  of  September,  in 
the  fifth  year  of  the  reign  aforesaid,  until  the  tenth  day  of  October, 
in  the  same  year,  in  the  parish  aforesaid,  in  the  county  aforesaid,  did 
languish  and  languishing  did  live;  on  which  tenth  day  of  October,  in 
the  year  aforesaid,  the  said  J.  D.,at  the  parish  aforesaid,  in  the  county 
aforesaid,  of  the  said  several  mortal  brnises,  lacerations  and  wounds 
died;  and  so  thejnrors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  R.  M.  and  li.  M.,  him  the  said  J.  D.  in  manner  and 
form  and  by  the  means  aforesaid,  feloniously,  wilfnlly  and  of  their 
malice  aforethought,  did  kill  and  murder,  against  the  peace  of  our 
said  lord  the  king,  his  crown  and  dignity. 

Murder  hi/  slril;iii<i;  villi  stones.(r) 
That  J.  D.,  late  of,  &c.,  labourer,  J.  P.,  late  of,  &c.,  labourer,  and 

{r)  R.  ».  D.ilc,  0  Mooro  19.  An  arrost  of  judgment  was  asked,  first,  because  tlic  num. 
bcr  ofHtoncH  was  uncertain,  and  secondly,  because  it  was  not  stated  in  wbicli  band  of  the 
cfveral  defendants  tbey  were  held.  The  twelve  jud-res,  however,  held  the  iudlctmunt  jjood, 
and  the  prisoner  was  executed.    See  note  s,  next  [mgv,. 


HOiMIClDE.  71 

C.  T.,  late  of,  &:c.,  Uibouror,  not  having  the  fear  of  God  before  their 
eyes,  but  being  moved  and  seduced  by  the  instigation  of  the  devil, 
on  the  sixteenth  July,  4  Geo.  IV.,  with  force  and  arms,  at,  &c.,  in  and 
upon  one  W.  W.,  in  the  peace,  &c.  then  and  there  being,  feloniously, 
wilfully  and  of  their  malice  aforethought,  did  make  an  assault,  and 
that  the  said  J.  D.,  J.  P.  and  C.  T.,  with  certain  stones  of  no  value, 
which  they  the  said  J.  D.,  J.  P.  and  C.  T.  in  their  right  hands  then 
and  there  had  and  held,  in  and  upon  the  back  part  of  the  head  of  hini 
the  said  W.  W.  then  and  there  feloniously,  wilfully  and  of  their  malice 
aforethought,  did  cast  and  throw,  and  that  the  said  J.  D.,  J.  P.  and 
C.  T.,  with  the  stones  aforesaid,  so  as  aforesaid  cast  and  thrown,  the 
aforesaid  W.  W.,  in  and  upon  the  back  part  of  the  head  of  him  the 
said  W.  W.,  then  and  there  feloniously,  wilfully  and  of  their  malice 
aforethought,  did  strike,  penetrate  and  wound,  then  and  there  giving 
to  the  said  W.  W.,  by  the  casting  and  throwing  of  the  stones  afore- 
said, in  and  upon  the  back  part  of  the  head  of  him  the  said  W.  W. 
one  mortal  wound,  bruise,  fracture  and  contusion,  of  the  breadth  of 
one  inch,  and  of  the  depth  of  half  an  inch,  of  which  said  mortal 
wound,  bruise,  fracture  and  contusion  he  the  said  W.  W.  then  and 
there  instantly  died.  And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  J.  D.,  J.  P.  and  C.  T.  him  the  said  W. 
W.  in  the  manner  and  by  the  means  aforesaid,  feloniously,  wilfully 
and  of  their  malice  aforethought  did  kill  and  murder,  against  the 
peace,  &.c.{s) 

Murder  hy  casting  a  s(one.{t) 

That  A.  B.  late  of  the  said  _  yeoman,  on  the  day  of 

in  the  year  of  our  Lord  one  thousand,  &c.,  with  force  and 

arms,  at  aforesaid,  in  the  county  aforesaid,  in  and  upon  one 

M.,  in  the  peace  of  God  and  of  the  said  commonwealth  then  and 


(s)  On  the  verdict  of  guilty  being  recorded,  Mr.  D.  F,  Jones  moved  in  arrest  of  judg-- 
nicnt,  that  the  indictment  was  defective  in  form  on  the  following  grounds:  First,  that 
after  the  words  "  certain  stones"  there  sliould  have  been  a  videlicet  mentioning  the  number 
of  stones.  Secondly,  that  it  was  not  expressed  in  what  hand  they  were  lield  by  each  of 
the  defendants.     And  lastly,  that  the  mode  of  causing  the  death  was  not  properly  stated. 

Judgment  was  accordingly  respited,  and  the  above  points  reserved  for  the  consideration 
of  the  twelve  judges,  and  were  now  argued  for  the  prisoner.  Dale,  by  Mr.  D.  F.  Jones,  who 
cited  as  to  the  first.  The  King  v.  Beech,  1  Leach  C.  C.  3d  ed.  159;  Hale's  P.  C.  vol.  ii,  p. 
182,  185.  Secondly,  Hale's  P.  C.  vol.  ii.  p.  185;  Cuppledick's  case,  44  Eliz.  K.  B.;  Ld. 
Sanchar's  case,  9  Rep.  119. 

[Ld.  Chief  Justice  Abbott.  It  is  very  possible  that  ten  stones  may  produce  one  mortal 
wound]. 

[Mr.  Justice  Bayley.  If  a  man  give  two  blows  they  may  only  produce  one  wound  ;  and 
it  cannot  be  for  a  moment  supposed  that  it  would  be  necessary  to  allege  the  number  of 
sliots  in  a  gun,  and  they  receive  an  impetus  from  the  gun  as  stones  thrown  by  the  hand]. 

Thirdly,  a  case  before  Mr.  Justice  Chambre,  at  the  Spring  Assizes  at  York,  1806. 

[Mr.  Justice  Holroyd.  The  verbs  cast  and  throw  may  be  used  either  in  an  active  or 
neuter  sense,  as  to  throw  at  backgammon,  or  with  dice,  or  to  cast  or  throw  with  a  net  info 
the  sea;  and  the  latter  part  of  this  indictment  shows  that  they  had  been  used  in  the  latter 
sense]. 

Mr.  J.  Park  was  to  have  argued  on  the  part  of  the  crown ;  but  the  judges  were  unani- 
mously of  opinion  that  the  conviction  was  right. 

The  convict  was  aderwards  executed. 

{t)  Stark.  C.  P.  424. 


72  OFFENCES  AGAINST  THE  PERSON. 

there  being,  feloniously,  wilfully  and  of  his  malice  aforethought,  did 
make  an  assault,  and  that  the  said  A.  B.,  a  certain  stone  of  no  value, 
which  he  the  said  A.  B.  in  his  right  hand  then  and  there  had  and 
held,  in  and  upon  the  right  side  of  the  head,  near  the  right  temple  of 
her  the  said  M.,  then  and  there  feloniously,  wilfully  and  of  his  malice 
aforethought  did  cast  and  throw;  and  that  the  said  A.  B.,  with  the 
stone  aforesaid,  so  as  aforesaid  cast  and  thrown,  the  aforesaid  M.,  in 
and  upon  the  right  side  of  the  head,  near  the  right  temple  of  her  the 
said  M.,  then  and  there  feloniously,  wilfully  and  of  his  malice  afore- 
thought did  strike,  penetrate  and  wound  ;  giving  to  the  said  M.,  by 
the  casting  and  throwing  of  the  stone  aforesaid,  in  and  upon  the  right 
side  of  the  head,  near  the  right  temple  of  her  the  said  M.,  one  mortal 
wound  of  the  length  of  one  inch,  and  of  the  depth  of  one  inch,  of 
which  said  mortal  wound  she  the  said  M.,  from  the  said  day 

of  in  the  year  aforesaid,  until  the  day  of  in  the 

same  year,  at  aforesaid,  at  the  county  aforesaid,  did  languish, 

and  languishing  did  live;  on  which  said  day  of  in  the 

year  aforesaid,  the  said  M.,  at  aforesaid,  in  the  county  afore^ 

said,  of  the  said  mortal  wound,  died.  And  so  the  jurors  aforesaid, 
upon  their  oath  {oi-  oaths  and  affirmations)  aforesaid,  do  say,  that 
the  said  A.  B.  her  the  said  M.,  in  the  manner  and  by  the  means  afore- 
said, feloniously,  wilfully  and  of  his  malice  aforethought,  did  kill  and 
murder,  contrary,  &c. 

Murder  hy  strikivg  iviih  a  stone.{u) 

That  E.  W.,  not  having  the  fear  of  God  before  his  eyes,  &c.,  on 
the  twenty-third  day  of  July,  one  thousand  eight  hundred  and  twelve, 
with  force  and  arms,  at,  &c.,  in  and  upon  one  S.  S.,  in  the  peace  of 
God,  &c.,  then  and  there  being,  feloniously,  wilfully  and  of  his  malice 
aforethought,  did  make  an  assault;  and  that  the  said  E.  W.  (with)  a 
certain  stone  of  no  value,  which  he  the  said  E.  W.  in  his  right  hand 
then  and  there  had  and  held,  in  and  upon  the  right  side  of  the  head, 
near  the  right  temple  of  him  the  said  S.  S.,  then  and  there  feloniously, 
wilfully  and  of  his  malice  aforethought  did  cast  and  throw  ;  and  that 
he  the  said  E.  W.,  with  the  stone  aforesaid  so  as  aforesaid  cast  and 
tlirown,  the  aforesaid  S,  S,,  in  and  upon  the  right  side  of  the  head, 
near  the  right  temple  of  him  the  said  S.  S.,  then  and  there  feloniously, 
wilfully  and  of  his  malice  aforethought,  did  strike,  penetrate  and 
wound,  giving  to  the  said  S.  S.,  by  the  casting  and  throwing  of  the 
stone  aforesaid,  in  and  upon  the  riglit  side  of  the  head,  &c.,  one  mor- 
tal wound,  of  the  length  of  two  inches  and  of  the  depth  of  one  incii, 
of  which  said  mortal  wound  the  said  S.  S.  then  and  there  instantly 
died;  and  so  the  jurors  aforesaid,  upon  their  oaths,  &c.  say,  that  the 
said  E.  W.,  him  the  said  S.  S,,  in  manner  and  form  aforesaid,  felo- 

(u)  White  V.  Corn,,  G  Birin.  179.  The  first  olijcction  to  tliis  count  nr'iHing'  from  the  inlur- 
poliition  of  the  word  "  with"  in  the  sixth  line,  was  treated  by  the  court  as  arising  from  a 
clerical  error,  and  as  not  so  far  affecliufr  tlic  sense  of  tlie  averment  as  to  vitiate  it.  It  is 
not  necessary,  it  was  said  also,  to  distinguisli  between  the  two  degrees  in  an  indictment 
for  homicide.  So  far  as  the  indictment  was  concerned,  the  judgment  of  the  court  below 
on  u  verdict  of  murder  in  the  first  degree  was  sustained. 


HOMICIDE.  73 

niously,  wilfully  and  of  his  malice  aforethought,  did  kill  and  murder, 
against  the  peace  and  dignity  of  the  Commonwealth  of  Penn- 
sylvania. 

Striking  loitk  stones. (v) 

That  J.  D.,  late  of,  &:c.,  labourer,  J.  P.,  late  of,  &c.,  labourer,  and 
C.  T.,  late  of,  &c,,  labourer,  not  having  the  fear  of  God  before  their 
eyes,  but  being  moved  and  seduced  by  the  instigation  of  the  devil,  on 
the  sixteenth  July,  4  Geo.  IV.,  with  force  and  arms,  at  W.  aforesaid, 
in  the  county  aforesaid,  in  and  upon  one  W.  W  ,  in  the  peace,  &c., 
then  and  there  being,  feloniously  did  make  an  assault,  and  that  the 
said  J.  D.,  J.  P.  and  C.  T.,  (with)  certain  stones  of  no  value,  which 
they  the  said  J.  D.,  J.  P.  and  C.  T.  in  their  right  hands  then  and  there 
had  and  held,  in  and  upon  the  back  part  of  the  head  of  him  the  said 
W.  \V.  then  and  there  feloniously,  wilfully  and  of  their  malice  afore- 
thought did  cast  and  throw,  and  that  the  said  J.  D.,  J.  P.  and  C.  T., 
with  the  stones  aforesaid  so  as  aforesaid  cast  and  thrown,  the  afore- 
said W.  W,,  in  and  upon  the  back  part  of  the  head  of  him  the  said 
W.  W.,  then  and  there  feloniously,  wilfully  and  of  their  malice  afore- 
thought, did  strike,  penetrate  and  wound,  feloniously,  wilfully  and  of 
their  malice  aforethought,  then  and  there  giving  to  the  said  W.  W., 
by  the  casting  and  throwing  of  the  stones  aforesaid  in  and  upon  the 
back  part  of  the  head  of  him  the  said  W.  W.,  one  mortal  wound, 
bruise,  fracture  and  contusion,  of  the  breadth  of  one  inch  and  of  the 
depth  of  half  an  inch,- of  which  said  mortal  wound,  bruise,  fracture 
and  contusion,  he  the  said  W.  W.  then  and  there  instantly  died.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said 
J.  D.,  J.  P.  and  C.  T.,  him  the  said  W.  W,  in  the  manner  and  by  the 
means  aforesaid,  feloniously,  wilfully  and  of  their  malice  aforethought 
did  kill  and  murder,  against  the  peace,  &c; 

By  striking  with  an  axe  on  the  neck.{ic) 

That  J.  M»,  late  of  said  county,  labourer,  not  having  the  fear  of 
God  before  his  eyes,  but  being  moved  and  seduced  by  the  instiga- 
tion of  the  devil,  on  the  twejity-fifth  day  of  March,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  thirty-two,  with  force  and 
arms,  at,  to  wit,  in  the  County  of  Jackson  aforesaid,  in  and  upon  one 
S.  W.,  in  the  peace  of  God  and  the  state,  then  and  there  being,  felo- 

(c)  On  this  indictment  the  defendant  was  tried  and  convicted.  Jones  moved  in  arrest 
of  judgment:  First,  that  after  the  words  "certain  stones,"  there  should  have  been  a  vide- 
licet mentioning  the  number.  Secondly,  that  it  was  not  expressed  in  what  hand  the  stonea 
were  held  by  each.  Thirdly,  the  mode  of  causing  the  death  was  not  properly  stated. 
Judgment  was  respited,  and  the  above  points  reserved  for  the  consideration  of  the  judges. 

In  Hilary  Term,  1824,  tliis  case  was  argued  in  the  Exchequer  Cliamber  before  eleven 
of  the  judges,  by  D.  F.  Jones  for  the  prisoners;  J.  Parke  (wlio  appeared  for  the  crown), 
was  not  heard.  The  judges  were  unanimously  of  opinion  that  the  conviction  was  right. 
The  judges  held  that  the  cause  of  the  death  was  sufficiently  stated,  it  being  clear  the 
"stones"  were  what  was  cast  and  thrown  at  the  deceased,  and  the  word  "  with"  mig^ht  be 
rejected,  or  the  words  "cast  and  throw"  miffht  be  considered  as  used  as  neuter  verbs;  R. 
».  Dale,  1  Mood.  C.  C.  5. — The  word  "with,"  put  in  brackets  in  the  text,  should  be  left  out. 

(jc)  This  form  was  sustained  in  Mitchell  v.  State,  8  Yerg.  515. 
7 


74  OFFENCES  AGAINST  THE  PERSON. 

nioiisly,  wilfully,  unlawfully  and  of  his  malice  aforethought,  did 
make  an  assault,  and  the  said  J.  M.,  with  a  certain  axe  made  of  iron 
and  steel,  of  the  value  of  one  dollar,  which  he  the  said  J.  M.,  in  both 
his  hands  then  and  thece  held,  the  said  S.  W.,  in  and  upon  the  rigiit 
side  of  the  neck  of  him  the  said  S.  W.,  between  the  head  and  shoul- 
der of  him  the  said  S.  W.,  then  and  there  unlawfully  and  of  his 
malice  aforethought,  did  strike,  thrust  and  penetrate,  giving  to  the 
said  S.  W.,  then  and  there,  with  the  axe  aforesaid,  in  and  upon  the 
right  side  of  the  neck  of  him  the  said  S.  W.,  between  the  head  and 
shoulder  of  him  the  said  S.  W.,  one  mortal  wound  of  the  length  of 
ten  inches,  and  of  tlie  depth  of  four  inches,  of  which  said  mortal 
wound,  the  said  S.  W.,  in  the  County  of  Jackson  aforesaid,  on  the 
day  aforesaid,  and  the  year  aforesaid,  did  instantly  die  ;  and  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  J. 
M.,  the  said  S,  W.,  in  manner  and  form  aforesaid,  unlawfully  and  of 
his  malice  aforethought,  did  kill  and  murder. 

By  striking  with  a  knife  on   the  hip,  the  death  occurring  in   another 

state.{x) 

That  W.  D.,  late  of  the  said  County  of  Stokes,  labourer,  not  having 
the  fear  of  God  before  his  eyes,  but  being  moved  and  seduced  by  the 
instigation  of  the  devil,  on  the  thirteenth  day  of  August,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  forty-two,  with  force 
and  arms  in  the  county  aforesaid;  in  and  upon  one  A.  H.,  in  the 
peace  of  God  and  the  state,  then  and  there  being,  feloniously,  wil- 
fully and  of  his  malice  aforethought,  did  make  an  assault,  and  that 
the  said  W.  D.,  with  a  certain  knife  of  the  value  of  sixpence,  whicii 
he  the  said  W.  D.  in  his  right  hand  then  and  there  had  and  held,  the 
said  A.  H.,  in  and  upon  the  right  hip  and  the  left  side  of  the  back 
near  the  back-bone  of  him  the  said  A.  H.,  then  and  there  feloniously, 
wilfully  and  of  his  malice  aforethought,  did  strike  and  thrust,  givuig 
to  the  said  A.  H.,  then  and  there  with  the  knife  aforesaid,  in  and 
upon  the  said  right  hip  and  the  left  side  of  the  back  near  the  back- 
bone of  the  said  A.  H.,  several  mortal  wounds,  each  of  the  breadth 
of  three  inches  and  of  the  depth  of  six  inches,  of  which  said 
several  mortal  wounds  the  said  A.  H.,  from  the  said  thirteenth 
day  of  August,  in  the  year  aforesaid,  until  the  twenty-ninth  day  of 
the  same  month  of  August,  in  the  year  aforesaid,  as  well  as  in  the 
county  aforesaid,  as  in  the  County  of  Patrick,  in  the  State  of  Virginia, 
did  languish  and  languishing  did  live,  on  which  said  twenty-ninth 
day  of  August,  in  the  year  aforesaid,  the  said  A.  IL,  in  the  said 
County  of  Patrick,  in  the  State  of  Virginia,  of  the  said  several  mortal 
wounds  died;  and  so  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  say,  that  the  said  W.  D.,  the  said  A.  H.,  in  manner  and  by  the 
means  aforesaid,  feloniously,  wilfully  and  of  his  malice  aforethought, 
did  kill  and  murder,  against  the  peace  and  dignity  of  the  state. 


(i)  In  this  form,  wliich  was  susfaincd  in  North  Carolina,  State  c.  Diinkley,  3  Iredell 
1 17,  the  statutory  concUision  was  oniif»cd;  and  tiic  same  feature  was  sustained  in  tJoni.  v. 
Wiiile,  6  Binn.  163  ;  ace  aide,  p.  12,  45. 


HOMICIDE.  75 

Against  a  slave  for  murder  with  an  axe.{y) 

That  A.,  a  negro  slave  the  property  of  J.  H.,  late  of  the  County  of 
Wayne,  and  State  of  North  Carohna,  not  having  the  fear  of  God 
before  his  eyes,  but  being  moved  and  seduced  by  the  instigations  of 
the  devil,  on  the  fourth  day  of  November,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  seventeen,  with  force  and  arms,  in 
the  County  of  Wayne,  and  state  aforesaid,  in  and  upon  A.  S,,  in  the 
peace  of  God  and  the  state,  then  and  there  being,  did  then  and  there 
feloniously,  wilfully  and  of  his  malice  aforethought,  make  an  assault. 
and  that  the  said  A.  with  a  certain  axe  of  the  value  of  tenpence,  cur- 
rent money  of  the  state  aforesaid,  which  axe  the  said  A.  in  both  his 
hands  then  and  there  had  and  held,  in  and  upon  the  said  A.  S.,  on  the 
right  side  of  the  head,  near  the  right  temple  of  said  A.  S.,  feloniously, 
wilfully  and  of  his  malice  aforethought,  did  then  and  there  strike  and 

(y)  This  count  was  sustained  in  State  k.  Cherry,  3  Murph.  7.  Taylor,  Chief  Justice, 
delivered  the  opinion  of  the  court: 

"An  indictment  ought  to  contain  a  description  of  the  offence  which  the  prisoner  is 
called  upon  to  answer,  expressed  with  plainness,  brevity  and  perspicuity,  and  accompanied 
with  those  essential  circumstances  which  concur  to  ascertain  the  fact  and  its  nature.  In 
the  statement  of  these  and  of  tlieir  specification,  great  strictness  has  always  been  required 
in  favour  of  life,  to  a  degree,  indeed,  that  in  the  opinion  of  Sir  Matthew  Hale,  it  had  he- 
come  the  disease  and  reproach  of  the  law.  I  cannot  think  it  possible  that  any  man  can 
read  this  indictment,  without  receiving  from  it  the  impression  that  the  assault,  the  hold- 
ing of  the  axe  in  both  hands,  and  giving  the  mortal  blow,  were  all  parts  of  one  and  the 
same  transaction,  and  that  the  last  mentioned  act  followed  immediately.  The  assault  is 
stated  to  have  been  on  the  fourth  of  November,  and  that  'then  and  there'  are  not  repeated 
as  to  the  blow  itself  If  a  person  were  asked,  upon  reading  the  indictment,  when  and 
where  the  blow  was  given,  he  would  assuredly  answer,  in  the  County  of  Wayne,  and  on 
the  fourth  day  of  November. 

"The  circumstances  of  place  and  time  are,  however,  particularly  required  by  the  com- 
mon law  to  be  annexed  to  the  very  fact  of  striking,  not  by  intendment  or  construction, 
but  by  express  words ;  in  order  that  the  offence  may  appear  to  the  court  to  have  been 
done  within  their  jurisdiction,  and  that  the  death  should  appear  to  have  taken  place  with- 
in a  year  and  a  day,  computing  from  the  time  the  blow  was  given ;  and  another  reason  as 
to  the  time,  was,  that  the  forfeiture  of  the  land  related  to  the  day  of  giving  the  blow. 
Tlw.t  this  was  so,  appears  from  Cotton's  case,  Cro.  Eliz.  739,  which  is  expressly  in  point, 
and  from  which  there  has  been  do  departure  in  any  modern  decisions  tliat  I  can  find.  By 
this  case,  and  the  series  of  decisions  to  the  same  effect,  to  be  found  in  Hale  and  Hawkins, 
I  should  feel  myself  conclusively  bound,  without  being  at  liberty  to  scrutinize  the  reasons 
of  them,  were  it  not  for  our  act  of  1811,  c.  6,  which  provides  that  it  shall  be  sufficient  to 
all  intents  and  purposes,  that  the  indictment  shall  contain  the  charge  against  the  criminal, 
expressed  in  a  plain,  intelligible  and  explicit  manner,  and  that  no  bill  of  indictment  shall 
be  quashed  or  judgment  arrested  for  or  by  reason  of  any  informalities  or  refinements, 
when  there  appears  to  the  court  sufficient  in  the  face  of  the  indictment,  to  induce  them  to 
proceed  to  judgment.  If  this  act  of  assembly  is  not  always  to  sleep  in  the  statute  book, 
it  never  can  be  called  into  operation  more  fitly  than  in  the  present  case,  for  undoubtedh-, 
the  charge  is  set  forth  in  a  plain,  intelligible  and  explicit  manner.  The  propriety  of  re- 
sorting to  this  act  in  the  present  case,  is  more  evident  when  it  is  seen  in  the  books  that 
tlie  exception  now  taken  has  been  yielded  to  only  'in  favour  of  life,'  and  that  it  would 
not  prevail  in  an  indictment  for  a  misdemeanor.  This  proves,  if  proof  were  necessary, 
that  an  indictment  may  be  intelligible  and  explicit,  and  contain  sufficient  to  induce  the 
court  to  proceed  to  judgment  without  the  time  and  place  being  repeated  as  to  the  blow,  if 
tiiey  had  already  been  connected  with  the  assault. 

"  I  wish  not  to  be  understood  as  expressing  an  opinion  that  the  act  cures  any  radical 
defects  in  an  iudictment,  or  that  the  time  and  place,  when  and  where  the  fact  was  com- 
mitted, are  not  an  essential' part  of  it;  but  I  tiiink  they  do  appear  by  a  rational  and  ob- 
vious construction  of  this  indictment,  and  as  it  is  only  by  a  subtle  and  refined  course  of 
argumentation  that  the  objection  can  be  made  perceptible  to  the  mind,  it  is  of  that  charnc- 
ter  which  the  act  intended  to  cure. — Let  the  reasons  in  arrest  of  judgment  be  overruled." 
— In  the  text  the  wanting  "then  and  there"  is  introduced. 


76  OFrENCES  AGAINST  THE  PERSON. 

beat,  giving  to  the  said  A.  S.,  by  the  striking  and  beating  aforesaid,  with 
the  axe  aforesaid,  in  and  upon  the  right  side  of  the  head,  near  the  right 
temple  of  him  the  said  A.  S.,  one  mortal  wound  of  the  depth  of  two 
inches  and  breadth  of  ten  inches ;  of  which  said  mortal  wound  the 
said  A.  S.  then  and  there  instantly  died,  &c.  &c.  And,  &c„j'that  negro 
slaves  B.  and  C,  the  reputed  property  of  A.  S.,  were  then  and  there 
each  of  them  present,  and  did  then  and  there  feloniously,  wickedly 
and  with  malice  aforethought,  aid  and  abet  the  said  A.  in  feloniously 
assaulting  and  striking  the  said  A.  S.  as  aforesaid,  &c.  And,  &c.,  that 
the  negro  slaves  A.,  B.  and  C,  feloniously,  wilfully  and  of  their 
malice  aforethought,  him  the  said  A.  S.  did  kill  and-  murder,  against 
the  peace  and  dignity  of  the  state. 

Murder  by  stabbing  with  a  hiife\z)  '^  '"' 

That  A.  B,,  late  of  the  said  county,  yeoman,  on  the  day  of 

in  the  year  of  our  Lord,  &c.,  with  force  and.arms,  at 
aforesaid,  in  the  county  aforesaid,  in  and  upon  one  i.  JVL,  in  the  peace 
of  God  and  of  the  said  state  then  and  there  being,  feloniously,  wilfully 
and  of  his  malice  aforethought,  did  make  an  assault,  and  that  he  the 
said  A.  B.,  with  a  certain  knife  of  the  value  ofi*six,pence,  which  he 
the  said  A.  B.,  in  his  right  hand  then  and  theire  had  and  held,  the 
said  J.  M.,  in  and  upon  the  left  side  of  the  belly,  between  the  short 
ribs  of  him  the  said  J.  M.,  then  and  there  feloniously,  wilfully  and  of 
his  malice  aforethought,  did  strike  and  thrust,  giving  to  the  said  J. 
M.,  then  and  there,  with  the  knife  aforesaid,  in  and  upon  the  afore- 
said left  side  of  the  belly,  between  the  short  ribs  of  him  the  said  J. 
M.,  one  mortal  wound  of  the  breadth  of  three  inches  and  of  the  depth 
of  six  inches,  of  which  said  mortal  wound  the  said  J.  M.,  from  the 
said  day  of  in  the  year  aforesaid,  until  the  day  of 

in  the  same  year,  at  aforesaid,  in  the  county  aforesaid, 

did  languish  and  languishing  did  live;  on  which  said  day  of 

in  the  year  aforesaid,  the  said  J.  M.,  at  aforesaid,  in  the 

county  aforesaid,  of  the  said  mortal  wound  died.  And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  A.  B.,  him 
the  said  J.  M.,  in  the  manner  and  by  the  means  aforesaid,  felo- 
niously, wilfully  and  of  his  malice  aforethought,  did  kill  and  mur- 
der, contrary,  &:c. 

Murder.     Jlgainst  J.  T.  for  shooling  the  deceased,  and  against  A.  S.for 
aiding  and  abetting.{h) 

That  J.  T.,  late,  &c.,  and  A.  S.,  late,  &c.,  on  the  day  of 

in  the  year,  &.c.,  with  force  and  arms,  at  aforesaid,  in  the 

county  aforesaid,  in  and  upon  one  S.  G.,  in  the  peace  of  God,  and  of 
our  said  lord  the  king,  then  and  there  being,  feloniously,  wilfully  and 

(s)  Stark.  C.  V.  424.     See  form  for  "Cutting  Throat,"  ante,  p.  48. 

ih)  Stark.  C.  P.  423;  K.  v.  Taylor  and  Sliaw,  /-each  398.  A.  S.  was  f^nind  jCfuilty  and 
.].  T.  acquitted  ;  and  a  m.ijority  oCthe  judjrcs  were  of  oi)inion  that  the  conviction  of  A.  S. 
wjs  jrood,  l)ut  the  pri'-oncr  Jillcrwards  received  a  free  pardon.     See  Stark.  C.  P.  88,  81). 

Sec  for  oilier  form  fui  "Shuotin","  p.  47. 


HOMICIDE.  77 

of  their  malice  aforethought,  did  make  an  assault ;  and  that  the  said 
J.  T.,  a  certain  gun  called  a  carbine,  of  the  value  often  pounds,  then 
and  there  charged  with  gunpowder  and  a  leaden  bullet,  which  said 
gun  he  the  said  J.  T.,  in  both  his  hands  then  and  there  had  and  held, 
at  and  against  the  said  S.  G.,  then  and  there  feloniously,  wilfully  and 
of  his  malice  aforethought,  did  shoot  otf  and  discharge ;  and  that  the 
said  J.  T.,  with  the  leaden  bullet  aforesaid,  by  means  of  shooting  off 
and  discharging  the  said  gun  so  loaded,  to,  at  and  against  the  said  S. 
(t.  as  aforesaid,  did  then  and  there  feloniously,  wilfully  and  of  his 
malice  aforethought,  strike,  penetrate  and  wound  the  said  S.  G.,  in 
and  upon  the  right  side  of  the  head  of  him  the  said  S.  G.,  near  his 
right  temple,  giving  to  him  the  said  S.  G.,  then  and  there,  with  the 
leaden  bullet  aforesaid,  by  means  of  shooting  off  and  discharging  the 
said  gun  so  loaded,  to,  at  and-  against  the  said  S.  G.,  and  by  such 
striking,  penetrating  and  wounding  the  said  S,  G.,  as  aforesaid,  one 
mortal  wound  in  and  through  the  head  of  him  the  said  S.  G.,  of 
which  said  mortal  wound  the  said  S.  G.  did  then  and  there  instantly 
die  ;  and  that  the  said  A.  S.,  then  and  there  feloniously,  wilfully  and  of 
his  malice  aforethought,  was  present  aiding,  helping,  abetting,  com- 
forting, assisting  and  maintaining  the  said  J.  T.  in  the  felony  and 
murder  aforesaid,  in  manner  and  form  aforesaid,  to  do  and  commit, 
&c.  &c.     {Concluding  as  usual  in  indctmenis  for  murder). 

Murder  of  a  bastard  child.{c) 

That  A.  B,,  late  of,  &c.,  spinster,  on,  &c.,  being  big  with  a  male 
{the  sex  is  material)  child,  on  the  same  day  and  year,  at,  &c.,  by  the 
providence  of  God,  did  bring  forth  the  said  child  alive, (^)  of  the  body 
of  her  the  said  M.,  alone(e)  and  in  secret ;  which  said  male  child,  so 
being  born  alive,  by  the  laws  of  this  realm,  was  a  bastard ;  and  that 
the  said  A.  B.  afterwards,  to  wit,  on,  &c.,  as  soon  as  the  said  male 
bastard  child  was  born,  with  force  and  arms,  at,  &c.,  in  and  upon  the 
said  child,  feloniously,  wilfully  and  of  her  malice  aforethought,  did 
make  an  assault;  and  that  she  the  said  M.,  with  both  her  hands 
about  the  neck  of  him  the  said  child,  then  and  there  fixed,  him  the 
said  child,  then  and  there  feloniously,  wilfully  and  of  her  malice 
aforethought,  did  choke  and  strangle,  of  which  said  choking  and 
strangling,  the  said  child  then  and  there  instantly  died ;  and  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  tlie  said  A, 
15.,  him  the  said  male  bastard  child,  in  form  aforesaid,  feloniously, 
wilfully  and  of  her  malice  aforethought,  did  kill  and  murder,  against 
the  peace,  &c. 


(c)  Stark.  C.  P.  425. 

((/)  If  upon  view  of  tlie  child,  it  be  testified  by  one  witness,  by  apparent  probabilities, 
that  the  child  was  not  come  to  its  debitinn  partus  tempiis,  as  if  it  have  no  hair  or  nails,  or 
otlier  circumstances;  tiiis  (says  Lord  Hale)  I  have  always  taken  to  be  a  proof  by  one 
witness,  that  the  child  was  born  dead,  so  as  to  leave  it  nevertheless  to  the  jury,  as  upon  a 
common  law  evidence,  whether  she  were  guilty  of  tlie  death  or  not;  Starkie's  C.  P.  426. 

(e)  These  words  do  not  appear  to  be  necessary ;  iO. 


78  OFFENCES  AGAINST   THE  PERSON. 

Throwivg  a  bastard  child  in  a  privy -{f) 

That  C.  D.,  late  of  said  B.,  singlewoman,  on  the  day  of 

now  last  past,  being  pregnant  with  a  female  child,  afterwards,  to  wit, 
on  the  same  day  of  in  the  year  aforesaid,  at  B.  aforesaid, 

the  said  female  child,  alone  and  in  secret  from  her  body  did  bring 
forth  alive,  which  said  female  child,  so  born  alive,  was,  by  the  laws 
of  this  commonwealth,  a  bastard;  and  that  the  said  C.  D.,  afterwards, 
to  wit,  on  the  same  day  of  in  the  year  aforesaid,  with 

force  and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon 
the  said  female  bastard  child,  feloniously,  wilfully  and  of  her  malice 
aforethought,  did  make  an  assault;  and  that  the  said  C.  D.,  with  both 
her  hands,  the  said  female  bastard  child,  into  a  certain  privy  there 
situate,  wherein  was  a  great  quantity  of  human  excrements  and  other 
filth,  then  and  there  feloniously,  wilfully  and  of  her  malice  afore- 
thought, did  cast  and  throw  ;  by  reason  of  which  said  casting  and 
throwing  of  the  said  female  bastard  child  into  the  said  privy,  by  her 
the  said  C.  D.,  in  manner  as  aforesaid,  the  said  female  bastard  child, 
in  the  said  privy,  with  the  excrements  and  filth  aforesaid,  was  then 
and  there  choked  and  satfocated;  of  which  said  choking  and  sufi'oca- 
tion  the  said  female  bastard  child  then  and  there  instantly  died.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said 

C.  D.  the  said  female  bastard  child,  in  manner  and  form  aforesaid,  fe- 
loniously, wilfully  and  of  her  malice  aforethought,  did  kill  and  mur- 
der.    [Give  statutory  conclusion  as  in  book  1,  chaptei^  3). 

Smothering  a  bastard  child  in  a  linen  cloth.{g) 

That  C.  D.,  of  said  B.,  singlewoman,  on  the  day  of 

now  last  past,  at  B.  aforesaid,  in  the  county  aforesaid,  being  pregnant 
with  a  certain  female  child,  afterwards,  to  wit,  on  the  same 
day  of  in  the  year  aforesaid,  at  B.  aforesaid,  the  said  female 

child  alone  and  secretly  from  her  body  did  bring  forth  alive,  which 
said  female  child,  so  born  alive,  was,  by  the  laws  of  this  common- 
wealth, a  bastard;  and  that  the  said  C.  1),  afterwards,  to  wit,  on  the 
same  day  of  in  the  year  aforesaid,  with  force  and  arms, 

at  B.  aforesaid,  in  tlie  county  aforesaid,  in  and  upon  the  said  female 
bastard  child,  feloniously,  wilfully  and  of  her  malice  aforethought  did 
make  an  assault;  and  tUat  the  said  C.  D.,  with  both  her  hands,  the 
said  female  bastard  child,  in  a  certain  linen  cloth,  feloniously,  wilfully 
and  of  her  malice  aforethought,  did  put,  place,  fold  and  wrap  up;  by 
means  of  which  said  putting,  placing,  folding  and  wrapping  up  of  the 
said  female  bastard  child,  in  the  said  linen  cloth,  by  her  the  said  C. 

D.  as  aforesaid,  the  said  female  bastard  child  was  then  and  there 
choked,  sufTbcated  and  smothered;  of  which  said  choking,  sutTocation 
and  smothering,  the  said  female  bastard  child  then  and  there  instantly 
died.  And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  C.  I),  the  said  female  bastard  child,  in  manner  and  form 
aforesaid,  feloniously,  wilfully  and  of  her  malice  aforethought,  did 
kill  and  nuirdcr.    [Give  statutory  conclusion  as  m  boo/c  1,  c/tap.  3). 

(/)  3  Cliit.  C.  L.  707.     This  form,  and  tliat  wliicli  follows  it,  arc  introduced  by  Mr. 
Davirt,  :i»  conforiTiin(r  to  flic  MasMacliusctts  statute. 
{g)  Sec  Davis'  Tree.  17d. 


HOMICIDE.  79 

Murder,  in  Pennsylvania,  of  a  bastard  child  by  strangling.{li) 

That  U.  S.  of  the  county  aforesaid,  spinster,  on  the  twenty-second 
day  of  September,  A.  D.  one  thousand  eight  hundred  and  seven,  being 
big  with  a  female  child,  the  same  day  and  year,  in  the  county  afore- 
said, by  the  providence  of  God  did  bring  forth  the  said  child  alive  of 
the  body  of  her  the  said  U.,  alone  and  in  secret,  which  said  female 
child,  so  being  born  alive,  by  the  laws  of  this  commonwealth  was  a 
bastard;  and  that  the  said  U.  not  having  the  fear  of  God  before  her 
eyes,  but  being  moved  and  seduced  by  the  instigation  of  the  devil, 
afterwards,  to  wit,  on  the  22d  day  of  September,  A.  D.  one  thousand 
eight  hundred  and  seven,  as  soon  as  the  said  female  child  was  born, 
with  force  and  arms,  at  the  county  aforesaid,  in  and  upon  the  said 
child,  ill  the  peace  of  God  and  this  commonwealth  then  and  there 
being,  feloniously,  wilfully  and  of  her  malice  aforethought,  did  make 
an  assault,  and  that  she  the  said  U.,  with  both  her  hands  about  the 
neck  of  her  the  said  child,  then  and  there  feloniously,  wilfully  and  of 
her  malice  aforethought,  did  choke  and  strangle;  of  which  said  chok- 
ing and  strangling,  the  said  child  then  and  there  instantly  died.  And 
so  the  inquest,  &c.,  do  say,  that  the  said  U.  S.,  her  the  said  female 
bastard  child,  in  manner  and  form  aforesaid,  feloniously,  wilfully  and 
of  her  malice  aforethought,  did  kill  and  murder,  contrary  to  the  form 
of  the  act,  &:c.,  and  against  the  peace  and  dignity,  &c. 

Manslaughter  by  neglect.  First  count,  that  the  deceased  was  the  appren- 
tice of  the  prisoner,  and  died  from  neglect  in  prisoner  to  supply  him 
with  food,  4'C.(/) 

That  on  the  third  day  of  February,  one  thousand  eight  hundred 
and  forty-two,  at,  &.C.,  one  R.  K.  (the  deceased)  was  then  and  there 
an  apprentice  to  one  J.  C.  (the  prisoner),  and  as  such  apprentice  was 
then  under  the  care  and  control  of  the  said  J.  C;  and  that  it  then  and 
there  became  and  was  the  duty  of  the  said  J.  C,  during  the  time 
aforesaid,  to  permit  and  suffer  the  said  R.  K.  to  take  and  have  such 
proper  exercise  as  was  necessary  and  needful  for  the  bodily  health 
of  the  said  R.  K.,  so  being  such  apprentice  as  aforesaid;  and  it  then 
and  there  became  and  was  the  duty  of  the  said  J.  C.  to  find,  provide 
and  supply  the  said  R.  K.,  being  such  apprentice  as  aforesaid,  with 
proper  and  necessary  nourishment,  medicine,  medical  care  and  atten- 
tion; and,  &c, ;  {coiichiding  by  averring  in  the  usual  form  that 
the  deceased  being  weak  in  body,  the  prisoner  struck  and  beat 
him,  and  forced,  obliged  and  compelled  him  to  work  for  au 
unseasonable  time,  and  would  not  allow  him  to  take  proper  exercise 
and  recreation,  and  neglected  to  supply  him  with  proper  nourishment 
and  medicine,  medical  care  and  attention,  by  means  whereof  he  died), 
&c. 

Second  count — charging  killing  by  overu-oi'k  and,  beating. 

(The  second  count  stated  that  the  prisoner,  in  and  upon  the  de- 
ceased, so  being  such  apprentice  as  aforesaid,  and  under  the  care  and 

(li)  This  indictment  was  sustained  after  a  conviction  in  Pennsylvania,  in  1S07. 
(i)  R.  V.  Crumpton,  1  C.  &-  M,  597 


80  OFrE.VCES  AGAINST  THE  PERSOIV. 

control  of  him  the  said  J.  C.  as  aforesaid,  and  so  being  sick  and  weak 
in  body  as  aforesaid,  in  the  peace  of  God  and  our  said  lady  the  queen, 
feloniously  did  make  an  assault;  and  that  the  deceased  being  so  weak 
in  body  as  aforesaid,  the  prisoner  forced  him  to  work  for  certain  un- 
reasonable and  improper  times,  and  beat  him,  by  means  whereof  he 
died). 

Manslaughter.     Against  a  woman  for  exposing  her  infant  child  so  as  to 
produce  death.{j) 

That  the  said  A.  W.,  &c.,  on,  &c.,  and  in  the  year  aforesaid,  with 
force  and  arms,  at  the  parish  aforesaid,  in  the  county  aforesaid,  in  and 
upon  a  certain  female  child  then  and  there  born  of  the  body  of  the 
said  A.  W.,  whose  name  is  to  the  jurors  aforesaid  unknown,  felo- 
niously, wilfully  and  of  her  malice  aforethought  did  make  an  assault. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  it  was  the  duty  of  the  said  A.  W.  then  and  there  to  provide 
proper  and  sufficient  clothes,  covering  and  protection  for  the  body  of 
the  said  last  mentioned  female  child,  the  said  last  mentioned  female 
child  being  then  and  there  unable  to  provide  for  and  take  care  of  her- 
self •,  and  that  the  said  A.  W.,  then  and  there,  contrary  to  her  duty  in 
that  behalf,  feloniously,  wilfully  and  of  her  malice  aforethought,  with 
both  her  hands  did  put  and  place  the  said  last  mentioned  female  child 
in  a  certain  common  and  public  highway  and  open  place  there,  and 
then  and  there  did  feloniously,  wilfully  and  of  her  malice  aforethought 
desert  and  leave  the  said  last  mentioned  female  child  there  exposed 
to  the  inclemency  of  the  weather,  without  sufficient  clothes,  covering, 
shelter  and  protection  for  the  body  of  the  said  last  mentioned  female 
child.  By  means  of  which  said  several  premises  in  this  count  men- 
tioned, the  said  last  mentioned  female  child  became  and  was  mortally 
sick,  weak  and  disordered  in  her  body  ;  of  which  said  mortal  sickness, 
weakness  and  disorder  aforesaid,  the  said  last  mentioned  female  child, 
on  and  from  the  said  thirteenth  day  of  April,  in  the  year  aforesaid, 
until  the  fourteenth  day  of  the  same  month,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  did  languish,  and  languishing  did  live,  and 
then  and  there,  to  wit,  on  the  said  fourteenth  day  of  April,  in  the  year 
aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  did  die. 
And  so  the  jurors  aforesaid,  upon  their  oatli  aforesaid,  do  say,  that 
the  said  A.  W,,  the  said  last  mentioned  female  child,  in  manner  and 
tbrm  last  aforesaid,  feloniously,  wilfully  and  of  her  malice  afore- 
thought, did  kill  and  murder,  against  the  peace  of  our  lady  the  queen, 
her  crown  and  dignity. 

{))  R.  ».  Walters,  1  C.  &  M.  95.  Tlic  j)rinci|)lc  determined  in  tliis  case  was,  that  if  a. 
person  do  any  aet  towards  another  wiio  is  lielpless,  wiiich  must  necessarily  lead  to  the 
death  of  tiiat  other,  tlie  crime  amotmis  to  murder;  but  if  tiic  circumstances  are  sucli  that 
the  person  would  not  have  been  aware  tliat  the  result  would  he  death,  that  would  reduce 
the  crime  to  manslaufrhtcr,  provided  that  the  death  was  occasioned  by  an  unlawful  aet,  hut 
not  Buch  an  act  as  showed  a  malicious  mind.  It  was  said,  that  if  the  defendant  had  leil 
Jier  child,  a  yourijr  irif;mt,  at  a  jc^entleman's  door,  a  place  where  it  was  likely  to  be  found 
and  taken  care  of,  and  the  child  died,  it  would  he  manslaufrhter  only;  but  if  the  child  were 
left  in  a  remote  pla(;c,  whore  it  was  not  likely  to  be  found,  e.  fr.  on  a  barren  heath,  and  the 
death  of  the  child  ensued,  it  would  be  nmider.  'I'hc  defendant  was  convicted  of  man- 
slaughter. 


HOMICIDE.  81 

Second  count.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  farther  present,  that  the  said  A.  W.  afterwards,  to  wit,  on 
the  day  and  year  first  aforesaid,  at  the  parisli  aforesaid,  in  the  county 
aforesaid,  being  big  with  a  certain  female  child,  the  same  female 
child  alone  and  secretly  from  her  body  did  then  and  there  bring  forth 
alive.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  it  then  and  there  became  and  was  the  duty  of  the  said 
A.  W.,  as  the  mother  of  the  said  child  (to  fasten,  tie  and  secure  the 
navel-string  of  the  body  of  the  same  child,  and  to  provide  and  procure 
such  clothing,  covering  and  shelter  for  the  body  of  the  same  child,  as 
were  then  and  there  necessary  and  sufficient  to  protect  and  defend 
the  same  child  from  the  cold  and  inclemency  of  the  weather,  and  also 
to  procure  for  and  give,  and  adniinister  to  the  same  child  such  milk 
and  food  as  was  then  and  there  necessary  and  sufficient  for  the  sup- 
port and  maintenance  of  said  child).  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  the  said  A.  W.,  not  re- 
garding her  duty  in  that  behalf,  but  being  moved  and  seduced  by  the 
instigations  of  the  devil,  on  the  day  and  year  first  aforesaid,  v<ith 
force  and  arms,  at  the  parish  aforesaid,  in  the  county  aforesaid,  in 
and  upon  the  same  child  not  named,  in  the  peace  of  God  and  our 
said  lady  the  queen  then  and  there  being,  feloniously,  wilfully  and  of 
her  malice  aforethought,  did  make  an  assault ;  and  that  the  said  A. 
W.,  the  same  child  into  both  her  hands,  feloniously,  wilfully  and  of 
her  malice  aforethought,  did  then  and  there  take,  and  that  the  said 
A.  W.,  the  same  child,  feloniously,  wilfully  and  of  her  malice  afore- 
thought, with  both  her  hands,  did  then  and  there  put  and  place,  in  a 
certain  road  there  situate,  and  the  same  child  in  the  said  road,  then 
and  there,  feloniously,  wilfully  and  of  her  malice  aforethought,  did 
expose,  leave  and  abandon,  naked  and  without  any  clothing,  cover- 
ing or  shelter  whatever  to  protect  the  body  of  the  same  child  from 
the  cold  and  inclemency  of  the  weather,  t  And  that  the  said  A.  W. 
did  then  and  there  feloniously,  wilfully  and  of  her  malice  afore- 
thought, wholly  neglect,  omit  and  refuse  to  tie,  fasten  or  in  any  way 
secure  the  navel-string  of  the  body  of  the  same  child,  and  that  the 
said  A.  W.  did  then  and  there  feloniously,  wilfully  and  of  her  malice 
aforethought,  wholly  neglect,  omit  and  refuse  to  provide  and  procure 
any  clothing,  covering  or  shelter  whatsoever  for  the  same  child  ;  and 
that  the  said  A.  W.  did  then  and  there  feloniously,  wilfully  and  of 
her  malice  aforethought,  wholly  neglect,  omit  and  refuse  to  procure 
for  or  to  give  or  administer  to  the  same  child,  milk  or  other  food 
whatsoever,  by  means  of  which  said  last  mentioned  exposure,  leaving 
and  abandonment  of  the  same  child,  and  also  by  the  omitting  and 
refusing  to  tie,  fasten  and  secure  the  navel-string  of  the  body  of  the 
same  child  as  aforesaid,  and  to  provide  and  procure  clothing,  covering 
and  shelter  for  the  body  of  the  same  child  as  last  aforesaid,  and  to 
procure  lor  and  give  and  administer  to  the  same  child  milk  and  food 
as  last  aforesaid,  t  the  same  child  from  the  time  of  its  birth  aforesaid, 
on  the  day  and  year  first  aforesaid,  until  the  fourteenth  day  of  the 
same  month,  at  the  parish  aforesaid,  in  the  county  aforesaid,  did  lan- 
guish, and  languishing  did  live;  on  which  said  fourteenth  day  of 
April,  in  the  year  aforesaid,  the  same  child,  at  the  parish  aforesaid, 


83  OFFEXCES  AGAINST  THE  PERSON". 

in  the  county  aforesaid,  of  such  leaving,  abandonment  and  exposure, 
and  of  such  wilful  omission,  neglect  and  refusal  as  in  this  count  men- 
tioned, did  then  and  there  die.  And  so  the  jurors  aforesaid,  upon 
their  oaths  aforesaid,  do  say,  that  the  said  A.  W.  the  same  child  in 
manner  and  form  last  aforesaid,  feloniously,  wilfully  and  of  her  malice 
aforethought,  did  kill  and  murder,  against  the  peace  of  our  lady  the 
queen,  her  crown  and  dignity. 

Third  count.  {Exactly  similar  to  the  fourth,  but  instead  of  the 
part  between  (  ),  inserting  the  following) :  To  protect  and  defend 
the  same  child  from  the  cold  and  inclemency  of  the  weather,  and  to 
provide  and  procure  such  clothing,  covering  and  shelter  for  the  body 
of  the  said  child  as  was  then  and  there  necessary  and  sufficient  to 
protect  and  defend  the  same  child  from  the  cold  and  inclemency  of 
the  weather.  *  {And  instead  of  the  allegation  between  ft,  insert- 
ing the  following) :  And  that  the  said  A.  W.  did  then  and  there, 
feloniously,  wilfully  and  of  her  malice  aforethought,  wholly  neglect, 
omit  and  refuse  to  protect  and  defend  the  same  child  from  the  cold 
and  inclemency  of  the  weather,  or  to  provide  or  procure  any  clothing, 
covering  or  shelter  whatsoever  for  the  same  child,  **  by  means  of 
which  said  last  mentioned  exposure,  leaving  and  abandonment  of  the 
same  child,  and  also  neglecting,  omitting  and  refusing  to  protect  and 
defend  the  same  child  from  the  cold  and  inclemency  of  the  weather, 
and  to  provide  and  procure  clothing  and  shelter  for  the  body  of  the 
same  child,  as  in  this  count  mentioned,  *** 

Sixth  count.  {Exactly  similar  to  the  fifth  count,  except  that  in 
stating  the  duty  of  the  jirisoner,  the  following  ivords  were  added  ai 
the  *) :  And  also  to  procure  for,  and  give  and  administer  to  the  same 
child  such  milk  and  food  as  was  then  and  there  necessary  and  suffi- 
cient for  the  support  and  maintenance  of  the  same  child.  {And  in 
stating  the  cause  of  the  death,  the  following  allegation  was  inserted 
at  the  **) :  And  that  the  said  A.  W.  did  then  and  there  feloniously, 
wilfully  and  of  her  malice  aforethought,  wholly  neglect,  omit  and  re- 
fuse to  procure  for,  give  or  administer  to  the  same  child  any  milk  or 
other  food  whatsoever.  {And  at  the  ***  the  following  was  in- 
serted) :  And  to  procure  for,  and  to  give  and  administer  to  the  same 
child,  milk  and  food  as  last  aforesaid. 


Manslaughter  by  striking  with  stone.{J>) 

That  T.,  on,  &c.,  at,  &c.,  {commencing  as  usual),  at  G.,  in 
the  county  of  M.  aforesaid,  in  and  upon  one  J.  L.,  in  the  peace  of 
said  commonwealth,  then  and  there  being,  feloniously  and  wilfully 
did  make  an  assault,  and  that  he  the  said  T.,  a  certain  stone, 
which  he  the  said  T.  in  his  right  hand  then  and  there  had  and  held, 
in  and  upon  the  left  side  of  the  head  of  him  the  said  L.,  then  and 
there  feloniously  and  wilfully  did  cast  and  throw,  and  that  the  said 
T,,  with  the  stone  aforesaid,  so  as  aforesaid  cast  and  thrown,  the 
aforesaid  J.  L.,  in  and  upon  the  left  side  of  the  head  of  him  the  said 

(k)  Under  this  form  it  was  held,  that  it  was  sufficiently  averred  that  T.  gave  L.  a  mor- 
tal wound' on  the  25lli  of  .'^cpteiiibcr,  at  G. ;  Turns  v.  Com.,  6  Met.  225. 


HOMICIDE.  83 

J.  L.,  then  and  there  feloniously  and  wilfully  did  strike,  penetrate 
and  wound,  giving  to  the  said  J.  L.,  by  the  casting  and  throwing  of 
the  stone  aforesaid,  in  and  upon  the  left  side  of  the  head  of  him  the 
said  J.  L.,  one  mortal  wound  of  the  length  of  one  inch,  and  of  the 
breadth  of  half  an  inch,  of  which  said  mortal  wound,  he  the  said  J. 
L.,  from  the  said  twenty-fifth  day  of  September,  in  the  year  afore- 
said, to  the  twenty-sixth  day  of  the  same  September,  at  G'.  aforesaid, 
in  the  county  aforesaid,  did  languish  and  languishing  did  live ;  on 
which  twenty-sixth  day  of  the  same  September,  at  G.  aforesaid,  the 
said  J.  L.,  of  the  mortal  wound  aforesaid,  died  ;  and  so  the  said  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say  that  the  said  T.,  him  the 
said  J.  L.,  in  manner  and  form  aforesaid,  feloniously  and  wilfully  did 
kill  and  slay,  against  the  peace  of  said  commonwealth,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided. 

Manslaughter.     By  giving  to  the  deceased  large  quantities  of  spirituous 
liquors,  of  ichich  he  died.{l) 

That  J.  R.,  J.  P.  and  A.  K.,  &c.,  on  the  fifth  of  November,  at,  &c.,  did 
give,  administer  and  deliver  to  one  M.  A.,  divers  large  and  excessive 
quantities  of  spirituous  liquors  mixed  with  water,  and  also  divers 
large  and  excessive  quantities  of  wine  and  porter,  to  wit,  one  pint  of 
brandy  mixed  with  water,  one  pint  of  rum  mixed  with  water,  one 
pint  of  gin  mixed  with  water,  two  quarts  of  wine  called  port  wine, 
and  one  quart  of  porter,  and  then  and  there  unlawfully  and  felo- 
niously did  induce,  procure  and  persuade  the  said  M.  A.,  to  take, 
drink  and  swallow  down  into  his  body  the  said  quantities  of  spirituous 
liquors  mixed  with  water,  and  of  wine  and  porter,  the  said  quantities, 
&.C.,  being  then  and  there,  when  taken,  drunk  and  swallowed  by  the 
said  M.  A.,  likely  to  cause  and  procure  his  death,  and  which  they 
the  said  J.  R.,  J.  P.  and  A.  K.,  then  and  there  well  knew ;  and  that 
the  said  M,  A.,  did  then  and  there,  by  means  of  the  said  inducement, 
procurement  and  persuasion,  &c.,  take,  drink  and  swallow  down  into 
his  body  the  said  large  quantities,  &c.,  so  given,  &c.,  unto  him  as 
aforesaid,  by  means  whereof  the  said  M.  A.,  then  and  there  became 
and  was  greatly  drunk  and  *  intoxicated,  sick  and  greatly  dis- 
tempered in  his  body ;  and  while  he  the  said  M.  A.,  was  so  drunk, 
&c.,  as  aforesaid,  they  the  said  J.  R.  P.,  J.  P.  and  A.  K.,  did  then 
and  there,  to  wit,  on,  &c.,  at,  &c.,  make  an  assault  on  him  the  said 
M.  A.,  and  then  and  there  unlawfully  and  feloniously  forced  and 
compelled  him  to  go,  and  put,  placed  and  confined  him  in  a  certain 
carriage,  to  wit,  a  cabriolet,  and  then  and  there  drove  and  carried 
him  about  therein  for  a  long  time,  to  wit,  for  two  hours  then  next 
following,  and  therein  and  thereby,  then  and  there  greatly  shook, 
threw,  pulled  and  knocked  about  the  said  M.  A.,  by  means'whereof 
the  said  M.  A.,  then  and  there  also  became  mortally  sick  and  greatly 
distempered  in  his  body ;  of  which  said  large  and  excessive  quan- 
tities of  the  said  spirituous  liquors,  &c.,  so  by  him  the  said  M.  A., 
taken,  &c.,  as  aforesaid,  and  of  the  said  drunkeimess,  &c.,  occasioned 

(I)  R.  V.  Packard,  1  C.,&.  M.  133.  The  defendants  were  found  guilty  before  Mr.  Baron 
Parke. 


84  OFFENCES  AGAINST  THE  PERSON. 

thereby,  and  of  the  said  shaking,  &c.,  and  of  the  said  sickness  and 
distemper  occasioned  thereby,  he  the  said  M.  A.,  then  and  there  in- 
stantly died.  {^Conclude  with  an  allegation  in  the  usual  form, 
viz.): — that  the  said  J.  R.  P.,  J.  P.  and  A.  K.,  the  said  M.  A.,  in 
manner  and  form  aforesaid,  unlawfully  and  feloniously  did  kill  and 
slay,  &.C. 

Against  driver  of  a  cart  for  drivirig  over  deceased. 

That  A.  B.,  of,  &c.,  on  with  force  and  arms,  at  in 

the  county  aforesaid,  in  the  public  highway  there,  in  and  upon  one 
C.  D.,  in  the  peace  of  the  said  commonwealth  then  and  there  being, 
feloniously  and  wilfully  did  make  an  assault,  and  a  certain  cart  of 
the  value  of  ten  dollars,  then  and  there  drawn  by  two  horses,  whicli 
he  the  said  A.  B.  was  then  and  there  driving  in  and  along  the  high- 
way aforesaid,  in,  upon  and  against  the  said  C.  D.  feloniously  and  wil- 
fully did  then  and  there  force  and  drive ;  and  him  the  said  C.  D.  did 
thereby,  then  and  there,  throw  to  and  upon  the  ground,  and  did  then 
and  there  feloniously  and  wilfully  force  and  drive  one  of  the  wheels  of 
the  said  cart  against,  upon  and  over  the  head  of  him  the  said  C.  D.  then 
lying  upon  the  ground,  and  thereby  did  then  and  there  give  to  the  said 
C.  D.,  in  and  upon  the  head  of  him  the  said  C.  D.,  one  mortal  fracture 
and  contusion  of  the  breadth  of  four  inches  and  of  the  depth  of  four 
inches,  of  which  said  mortal  fracture  and  contusion,  the  said  C.  D. 
then  and  there  instantly  died  ;  and  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  A.  B.,  him  the  said  C.  D.,  then 
and  there  in  manner  and  form  aforesaid,  feloniously,  unlawfully  and 
wilfully  did  kill  and  slay,(m)  •  [Conclude  as  in  book  1,  chajjter  3). 

Manslaughter.     Against  a  husband  for  neglecting  to  provide  shelter  for 
his  ivife.{n) 

That  before,  upon  and  during  all  the  several  days  and  times  in 
this  count  hereinafter  mentioned,  and  at,  &c.,  G.  P.,  late  of.  the  parish 
of  N.,  in  the  County  of  Kent,  labourer,  was  the  husband  of  one  IM. 
P.,  she  the  said  M.  P.,  during  all  the  days  and'  times  in  this  count 
mentioned,  being  sick,  weak,  diseased,  distempered  and  disordered 
in  her  body,  and  through  such  weakness,  &c.,  unable  to  provide  her- 
self with  such  food,  raiment,  apparel  and  shelter,  as  were  necessary 
for  the  sustenance  and  protection  of  her  body,  and  being  unable, 
during  all  the  days  and  times  aforesaid,  to  provide  herself  with  such 
medicines,  care  and  treatment,  as  were  necessary  for  the  cure  and 
alleviation  of  her  said  sickness,  &c. ;  all  which  several  premises  the 

(m)  Davis'  Precedents  IGG;  Starkie's'C.  P.  425. 

(n)  R.  V.  Plumrncr,  1  C.  &  K.  600.  Though  in  this  case  tlic  liusb;md  and  wife  scpa. 
rated  by  common  consent,  the  husband  grantiug  the  wife  a  stipuhitcd  allowance,  wiiich  was 
regularly  i>ai(l,  it  was  held  that  if  he  knew,  or  was  informed  that  she  was  without  shelter, 
and  reliised  to  provide  her  with  it,  in  conseiiuence  of  which  her  death  ensued,  he  was  ffiiilty 
of  manslanirhter  (even  thoiijrh  the  wife  was  labouring  under  disease  which  must  ultimately 
have  proved  fatal),  if  it  could  be  shown  that  her  death  was  accelerated  for  want  of  the  shel- 
ter which  he  had  denied.  The  facts  not  supporting  the  indictment,  the  defendant  was 
acquitted. 


HOMICIDE.  85 

said  G.  P.,  on  all  the  days,  &:c.,  well  knew ;  and  the  jurors  aforesaid, 
&.C.,  further  present  that  it  was  the  duty  of  the  said  G.  P.,  being 
such  husband  as  aforesaid,  during  all  the  days  and  times  aforesaid, 
to  find,  provide  and  supply  the  said  M.  P.,  with  competent  and  suf- 
ficient meat  and  driuk  for  the  sustenance  of  her  body,  and  also  with 
competent  and  sufficient  apparel,  lodging  and  shelter  for  the  protec- 
tion of  the  body  of  the  said  M,  P.,  and  also  with  such  medicines,  care 
and  treatment  as  were  necessary  for  the  cure  and  alleviation  of  her 
said  sickness,  &:c. ;  and, the  jurors  aforesaid,  &.C.,  present  that  the  said 
G.  P.,  on  the  nineteenth  of  November,  one  thousand  eight  hundred 
and  forty-three,  and  on  divers  other  days  and  times  between  that  day 
and  the  twenty-fourth  of  November,  one  thousand  eight  hundred 
and  forty-three,  &c.,  at,  &c.,  did  assault  the  said  M.  P.,  and  that  the 
said  G.  P.,  on  the  said  nineteenth  of  November,  at,  &c.,  feloniously 
and  without  lawful  excuse,  and  contrary  to  his  duty  in  that  behalf, 
and  against  the  will  of  the  said  M.  P.,  did  omit,  neglect  and  refuse 
to  find,  provide  and  supply  to  the  said  M.  P.,  competent  and  suffi- 
cient meat  and  drink  for  the  sustenance  of  the  body  of  the  said  M. 
P. ;  and  also,  during  all  the  several  days  last  aforesaid,  at,  &c.,  felo- 
niously, without  lawful  excuse,  contrary  to  his  duty  in  that  behalf, 
and  against  the  will  of  the  said  M.  P.,  did  omit,  neglect  and  refuse 
to  provide  and  supply  the  said  M.  P.  with  competent  and  sufficient 
apparel,  lodging  and  shelter  for  the  protection  of  the  body  of  the  said 
jNI.  p.,  and  also  daring  all  the  days  last  aforesaid,  at,  &c.,  feloniously 
without  lawful  excuse,  contrary  to  his  duty  in  that  behalf,  and 
against  the  will  of  the  said  M.  P.,  did  omit,  neglect  and  refuse  to 
find,  provide  and  supply  the  said  M.  P.  with  such  medicines,  care 
and  treatment,  as  were  necessary  for  the  cure  and  alleviation  of  the 
said  sickness,  weakness,  &c.,  by  means  of  which  said  several  pre- 
mises, she  the  said  JNI.  P.,  on  and  from  the  said  nineteenth  of  No- 
vember, one  thousand  eight  hundred  and  forty-three,  until  the  said 
twenty-fourth  of  November,  in  the  said  year,  did  languish  and  lan- 
guishing did  live,  and  then,  to  wit,  on  the  said  twenty-fourth  *  of 
Noverriber,  at,  &c.,  in  the  year  aforesaid,  &c.,  of  the  said  mortal  sick- 
ness, weakness,  distemper  and  disorder  of  her  body,  did  die.  And 
the  jurors,  Sec,  do  say,  that  the  said  G.  P.,  her  the  said  M.  P.,  in 
manner  and  form  aforesaid,  feloniously  did  kill  and  slay,  &c.(o) 

Manslaughter  'in  second  degree  against  captain   and  engineer  of  a 
steamboat,  under  New  York  Rev.  Statute,  p.  531,  s.  4Q.{p) 

That  A.  B.,  late  of  the  first  ward  of  the  City  of  New  Yorlc,  in  the 
County  of  New  York  aforesaid,  labourer,  and  C.  1).,  late  of  the  same 
place,  also  labourer,  on  the  day  of  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  forty-seven,  (the  said  A.  B. 

(o)  The  second  count  was  similar  to  the  first,  except  that  it  omitted  the  allegations. of 
assault,  and  also  of  the  acts  having-been  done  against  the  will  of  the  deceased.  The  third 
count  charged  tlic  deatii  to  have  been  caused  by  the  inclemency  of  the  weather ;  and  the 
fourth  and  filth  and  sixth  counts  repeated  severally  the  allegations  in  the  second,  relative 
to  the  omitting  to  supply  elotliing,  lodging,  food  and  medicine. 

( p)  For  this  form  I  am  indebted  to  J.  B.  Phillips  Esq.,  the  accomplished  assistant  of  tiJC 
district  attorney  of  the  City  of  New  York. 
S 


86  OFFENCES  AGAINST  THE  PERSON. 

then  and  there  being  the  captain  of  a  certain  steamboat  used  for  the 
conveyance  of  passengers,  known  and  distinguished  by  the  name 
and  title  of  the  "  Niagara,"  and  then  and  there  having  charge  of  the 
said  steamboat ;  and  the  said  C.  D.,  then  and  there  being  the  engi- 
neer of  the  said  steamboat,  having  charge  of  the  boiler  of  such  boat, 
and  other  apparatus  for  the  generation  of  steam),  on  the  day  and 
year  aforesaid,  and  whilst  the  said  steamboat  was  then  and  there 
navigated,  sailed  and  propelled  in  and  upon  a  certain  river  and  pub- 
lic highway,  known  and  distinguished  by  the  name  and  title  of  the 
Hudson  river,  at  the  ward,  city  and  county  aforesaid,  with  force  and 
arms,  feloniously  and  unlawfully,  from  ignorance  and  gross  neglect 
and  for  the  purpose  of  excelling  another  boat  (to  wit,  a  certain  other 
steamboat  called  the  )  in  speed,  did  create  and  allow  to  be 

created  such  an  undue  quantity  of  steam  as  to  burst  and  break  the 
boiler  of  said  boat,  and  other  apparatus  in  which  said  steam  was 
generated,  and  the  other  machinery  and  apparatus  connected  there- 
with, by  which  bursting  and  breaking,  as  well  as  by  reason  of  the 
steam  and  scalding  water  escaping  and  issuing  from  and  out  of  the 
said  boiler  and  other  appara-tus,  one  E.  F..,  in  the  peace  of  God  and 
of  the  said  people,  then  and  there  being,  was  then  and  there  mortally 
burned,  scalded  and  wounded  in  and  upon  the  head,  neck,  breast, 
back,  stomach  and  arms  of  him  the  said  E.  F.,  of  which  said  mortal 
burns,  scalds  and  wounds,  the  said  E.  F.,  then  and  there  instantly 
died. 

And  so  the  jurors  aforesaid,  upon  their  oafh  aforesaid,  do  say  that 
the  said  A.  B.  and  C.  D.,  him  the  said  E.  F.,  in  the  manner  and  by 
the  means  aforesaid,  feloniously  and  wilfully  did  kill  and  slay, 
against  the  form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  of  the  people  of  the  State  of  New  York,  and  their 
dignity.  ■  .'         ' 

Involuntary  manslaughter  in  Pennsylvania,  by  striking  an  infant  with 
a  dray. 

That  C.  M'G.,  late  of  the  county  aforesaid,  porter,  on  the 
day  of  in  the  year,  &c.,  with  force  and  arms,  at  the  City  of 

Philadelphia,  in  the  county  aforesaid,  in  and  upon  one  S.  G.,  an  in- 
fant of  tender  years,  to  wit,  of  the  age  of  two  years,  and  in  the 
peace  of  God  and  the  commonwealth,  then  and  there  being,  did. 
make  an  assault;  and  that  the  said  C.  M'G.,  then  and  there  driving 
one  horse  drawing  a  dray,  did  then  and  there,  in  tlie  city  aforesaid, 
unlawfully  and  violently  drive  the  said  horse,  so  as  aforesaid  draw- 
ing the  said  dray,  to  and  against  the  said  S.  G.,  and  that  he  the  said 
C.  M'G.,  with  one  of  tlie  wheels  of  the  said  dray,  did  then  and  there, 
in  the  city  aforesaid,  by  such  driving,  unlawfully  and  violently,  the 
said  S.  G.,  drive,  force  and  throw  to  the  ground,  by  means  whereof, 
one  of  the  wheels  of  the  said  dray,  against,  upon  and  over  the  head 
of  the  said  S.,  did  strike  and  go,  thereby  and  then  and  there  giving 
railo  the  said  S.,  one  mortal  j'racture  and  contusion,  of  which  said 
mortal  I'racture  and  contusion,  she  the  said  S.,  on  tlie  same  day  an( 
year  aforesaid,  at  the  county  aforesaid,  died;  and  so  the  inquest 


-^      HOMICIDE.  8T 

aforesaid,  upon  their  oaths  and  affirmations  aforesaid,  do  say  that 
the  said  C.  M'G.,  her  the  said  S.  G.,  in  manner  and  by  the  means 
aforesaid,  unlawfully  did  kill,  contrary  to  the  form  of  the  act  of  As- 
sembly in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  Commonwealth  of  Pennsylvania. 


Murder  on  the  high  seas.  General  form  as  used  in  the  United  States 
Courts.  (With  commencement  and  conclusion  as  adopted  in  the  fede- 
ral courts  of  JVew  York).(q) 

Fii'st  count.     By  striking  ivith  a  sharp  instrument. 

Southern  District  of  New  York,  ss.  The  jurors  of  the  United 
States  of  America,  within  and  for  the  circuit  and  district  aforesaid, 
on  their  oath  present,  that  late  of  the  City  and  County  of  New 

York  in  the  circuit  and  district  aforesaid,  mariner,  late  of  the 

City  and  County  of  New  York,  in  the  circuit  and  district  aforesaid, 
mariner,  and  (if  as  many  as  three  were  engaged)  late  of  the 

City  and  County  of  New  York,  in  the  circuit  and  district  aforesaid, 
mariner,  not  having  the  fear  of  God  before  their  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  on  the  day 

of  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

•with  force  and  arms  upon  the  high  seas,  out  of  the  jurisdiction  of 
any  particular  state  of  the  said  United  States,  within  the  admiralty 
and  maritime  jurisdiction  of  the  said  United  States  and  within  the 
jurisdiction  of  this  court,  in  and  on  board  of  a  certain  vessel  being 
a  called  the  owned  by  a  certain  person  or  persons  whose 

names  are  to  the  said  jurors  unknown,  being  a  citizen  or  citizens  of 
the  United  States  of  America,  in  and  upon  one  in  the  peace  of 

God  and  the  said  United  States,  then  and  there  being  on  board  said 
called  the  on  the  high  seas,  out  of  the  jurisdiction  of 

any  particular  state  of  the  said  United  States  of  America,  within  the 
admiralty  and  maritime  jurisdiction  of  the  said  United  States  and 
within  the  jurisdiction  of  this  court,  piratically,  feloniously,  wilfully 
and  of  their  malice  aforethought  did  make  an  assault,  and  that  the 
said  with  a  certain  instrument  of  called  a  of  the 

value  of  which  he  the  said  in  his  hand  then  and 

there  had  and  held,  upon  the  of  him  the  said  then  and  there 

being  on  the  high  seas,  in  the  aforesaid,  and  out  of  the  juris- 

diction of  any  particular  state  of  the  said  United  States,  and  within 
the  jurisdiction  of  this  court,  then  and  there  feloniously,  wilfully  and 
of  his  malice  aforethought  did  strike,  giving  the  said  with  the 

aforesaid  in  manner  aforesaid,  in  and  upon  the  of  him 

the  said  ,  several  mortal  strokes,  wounds  and  bruises, ~  to  wit, 

one  mortal  wound  on  the  of  him  the  said  of  the  length 

of  inches,  and  of  the  depth  of  inches,  of  which  said  mor- 

tal wound  the  said  on  the  high  seas  aforesaid,  out  of  the  juris- 

iq)  This  indictment,  which  is  framed  with  great  accuracy,  is  that  on  which  Bahe,  the 
pirate,  was  lately  convicted  in  the  Southern  District  of  New  York.  This,  and  tiie  remain- 
ing federal  forms  from  New  York,  wore  obtained  from  Mr.  Mayberry,  assistant  to  the  L'. 
S.  district  attorney. 


88  OFFEXCES  AGAINST  THE  PERSOIV. 

diction  of  any  particular  state  of  the  said  United  States,  and  within 
the  jurisdiction  of  this  court,  instantly  died  {or  otherwise),  and  that 
the  said  then  and  there  feloniously,  wilfully  and  of  their  malice 

aforethought  were  present  aiding  and  assisting  the  said  in  the 

felony  and  murder  aforesaid,  in  manner  and  form  aforesaid  to  do 
and  commit;  and  so  the  jurors  aforesaid  upon  their  oath  aforesaid, 
do  say,  that  the  said  in  manner  and  form  aforesaid,  piratically, 

feloniously  and  of  their  malice  aforethought  did  kill  and  murder, 
against  the  peace  of  the  said  United  States  of  America  and  their 
dignity,  and  against  the  form  of  the  statute  of  the  said  United  States 
in  such  case  made  and  provided. 

Second  count. 

{Same  as  first  count,  substituting):  "owned  by  citizens  [or  a 
citizen)  of  the  United  States  of  America,"  for  "owned  by  a  certain 
person  or  persons,  whose  names  are  to  the  said  jurors  unknown,  being 
a  citizen  or  citizens  of  the  United  States  of  America." 

Third  count. 

(Sa?ne  as  second  count,  specifying  one  other  of  the  persons  en- 
gaged, as  principal,  and  the  others  as  aiders  and  abettors). 

Fourtli  count. 

[Same  as  third  count,  specifying  one  other  of  the  persons  engaged, 
as  principal,  and  the  others  as  aiders  and  abettors,  [and  so  on 
until  the  number  is  exhausted). 

Fifth  count. 

And  the  jurors  aforesaid  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  late  of  the  City  and  County  of  New  York  in  the  cir- 
cuit and  district  aforesaid,  mariner,  late  of  the  same  place  in 
the  circuit  and  district  aforesaid,  mariner,  and  late  of  the  same 
place  {or  otherwise),  not  having  the  fear  of  God  before  their  eyes,  but 
being  moved  and  seduced  by  the  instigation  of  the  devil,  on  the 
day  of  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  ,  with  force  and  arms,  on  the  high  seas,  out  of  the 
jurisdiction  of  any  particular  state  of  the  said  United  States  of  Ameri- 
ca, within  the  admiralty  and  maritime  jurisdiction  of  the  said  United 
States  and  within  the  jurisdiction  of  this  court,  on  board  of  a  certain 
vessel  being  a  called  the  owned  by  citizens  of  the 
United  States  of  America,  in  and  upon  one  in  the  peace  of  God 
and  the  said  United  States,  then  and  there  being  on  board  the  said 
called  the  on  the  high  seas,  out  of  the  jurisdiction  of  any 
particular  state  of  the  said  United  States,  and  within  the  jurisdiction 
of  this  court,  piratically,  feloniously,  wilfully  and  of  their  malice 
aforethought,  did  make  an  assault;  and  the  said  with  a  certain 
instrument  of  called  a  of  the  value  of  ,  which  he 
the  said  then  and  there  in  his  hand  had  and  held,  and 
tlie  said  {here  specify  one  other)  with  a  certain  other  instrument 
of  called  a  ;  of  the  value  of  which  he  the  said 
i'l  his  liand,  then  and  there  had  and  held,  and  the  said 
{here  specify  one  other,  if  as  many  are  contained  in  the  complaint) 
with  a  certain  other  instrument  of  called  a  of  the  value 
f»f  wiiifli  lie  tlie  said  in  his  hand  then  and  there 
liad  and  held,  the  said             in  and  upon  the  head,  face,  breast  and 


HOMFCIDE. 


89 


Other  parts  of  the  body  of  him  the  said  then  and  there  being 

on  the  high  seas,  in  the  said  called  the  out  of  the  juris- 

diction of  any  particular  state,  and  within  the  jurisdiction  of  this 
court,  then  and  there  feloniously,  wilfully,  and  of  their  malice  afore- 
thought did  strike  and  beat,  giving  him,  the  said  then  and  there 
with  the  aforesaid,  by  such  striking  and  beating,  divers  mortal 
wounds,  bruises  and  contusions,  in  and  upon  the  head,  face,  breast 
and  other  parts  of  the  body  of  him  the  said  ,  of  which  said 
mortal  wounds,  bruises  and  contusions,  he  the  said  on  the  high 
seas  aforesaid,  out  of  the  jurisdiction  of  any  particular  state  of  the 
said  United  States  of  America,  and  within  the  jurisdiction  of  tins 
court,  did  instantly  die  (or  as  in  preceding  indictment).  And  so 
the  jurors  aforesaid  on  their  oath  albresaid  do  say,  that  they  the  said 

in  the  manner  and  by  the  means  last  aforesaid,  on  the  high 
seas,  out  of  the  jurisdiction  of  any  particular  state  of  the  said  United 
States  of  America,  within  the  admiralty  and  maritime  jurisdiction  of 
the  said  United  States,  and  within  the  jurisdiction  of  this  coiu't, 
piratically,  feloniously,  wilfully  and  of  their  malice  aforethought,  the 
said  did  kill  and  murder,  against  the  peace  of  the  said  United 

States  of  America  and  their  dignity,  and  against  the  form  of  the 
statute  of  the  said  United  States  in  such  case  made  and  provided. 
Sixth  count.     By  droic7iing. 

And  the  jurors  aforesaid  on  their  oath  aforesaid,  do  further  present 
that  {as  in  fifth  count),  woi  having  the  fear  of  God  before  their  eyes, 
but  being  moved  and  seduced  by  the  instigation  of  the  devil,  on  the 

day  of  in  the  year  of  our  Lord  one  thousand  eight  hun- 

dred and  ,  with  force  and  arms  upon  the  high  seas,  out  of  the 

jurisdiction  of  any  particular  state  of  the  said  United  States,  and 
within  the  admiralty  and  maritime  jurisdiciion  of  the  said  United 
States,  and  within  the  jurisdiction  of  this  court,  on  board  of  a  certain 
vessel  being  a  called  the  owned  in  whole  or  in  part  by 

one  -of  the  a  citizen  of  the  United  States  of  America,  in 

and  upon  one  in  the  peace  of  God  and  of  the  said  United  States 

then  and  there  being,  on  board  of  the  said  called  the  on 

the  high  seas,  out  of  the  jurisdiction  of  any  particular  stateof  the  said 
United  States,  within  the  admiralty  and  maritime  jurisdiction  of  the 
said  United  States,  and  within  the  jurisdiction  of  this  court,  piratically, 
feloniously,  wilfully  and  of  their  malice  aforethought,  did  take  the  said 

into  their  hands,  he  the  said  then  and  there  being  on  the 

high  seas,  in  the  aforesaid,  out  of  the  jurisdiction  of  any  par- 

ticular state  of  the  said  United  States,  within,  &c.,  and   within  the 
jurisdiction  of  this  court,  and  did  then  and  there  feloniously,  wilfully 
and  of  their  malice  aforethought,  cast,  throw  and  push  the  said 
from  and  out  of  the  said  called  the  so  being  on  the  high 

seas  aforesaid,  out  of  the  jurisdiction  of  any  particular  state  of  the 
said  United  States  and  within  the  jurisdiction  of  this  court,  into  the 
sea,  by  means  of  which  said  casting,  throwing  and  pushing  of  the 
said  into  the  sea  aforesaid,  by  them  the  said  in  manner 

and  form  aforesaid,  he  the  said  in  the  sea  aforesaid,  with  the 

waters  thereof,  was  then  and  there  choked,  suffocated  and  drowned, 
of  which  said  choking,  suilbcation  and  drowning,  he  the  said 


90  OFFEXCES  AGAINST  THE  PERSON. 

then  and  there  in  the  sea  aforesaid,  out  of  the  jurisdiction  of  any  par- 
ticular state  of  the  said  United  States  of  America,  within,  &c.,  and 
within  the  jurisdiction  of  this  court,  instantly  died  ;  and  so  the  jurors 
aforesaid  on  their  oath  aforesaid  do  say,  that  the  said  in  the 

manner  and  by  the  means  aforesaid,  on  the  high  seas,  out  of  the  ju- 
risdiction of  any  particular  state  of  the  said  United  States  of  America, 
within,  &c.,  and  within  the  jurisdiction  of  this  court,  piratically,  felo- 
niously, wilfully  and  of  their  malice  aforethought,  the  said  did 
kill  and  murder,  against  the  peace  and  dignity  of  the  United  States  of 
America,  and  against  the  form  of  the  statute  of  the  said  United  States 
in  such  case  made  and  provided. 

Semnili  count.  Sa??ie  as  last,  stated  differently,  specifying  one  as 
•principal  and  the  others  as  aiding,  ^c. 

And  the  jurors  aforesaid  upon  their  oath  aforesaid,  do  further 
present,  that  {as  in  preceding  counts  specified),  not  having  the  fear 
of  God  before  their  eyes,  but  being  moved  and  seduced  by  the 
instigation  of  the  devil,  on  the  day  of  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  ,  with  force  and  arms, 

on  the  high  seas,  out  of  the  jurisdiction  of  any  particular  state  of  the 
said  United  States  of  America,  within  the  admiralty  and  maritime 
jurisdiction  of  the  said  United  States  and  within  the  jurisdiction  of 
tliis  court,  on  board  of  a  certain  vessel,  being  a  called  the 

owned  in  whole  or  in  part  by  one  [specify  one  of  the  owners)  of  the 
in  the  a  citizen  of  the  United  States  of  America,  in  and 

upon  one  in  the  peace  of  God  and  of  the  said  United  States, 

then  and  there  being  on  board  the  said  called  the  on  the 

high  seas,  out  of  the  jurisdiction  of  any  particular  state  of  the  said 
United  States,  within  the  admiralty  and  maritime  jurisdiction  of  the 
said  United  States,  and  within  the  jurisdiction  of  this  court,  piratically, 
feloniously,  wilfully  and  of  their  malice  aforethought,  did  make  an 
assault;  and  that  he  the  said  {here  name  one  as prineipal),  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  did  take 
the  said  in  his  hands,  he  the  said  then  and  there  being 

on  the  high  seas,  in  the  aforesaid,  out  of  the  jurisdiction  of  any 

particular  state  of  the  said  United  States,  within  the  admiralty  and 
maritime  jurisdiction  of  the  said  United  States,  and  within  the  juris- 
diction of  this  court,  and  did  then  and  there  feloniously,  wilfully  and 
of  his  malice  aforethought,  cast,  throw  and  push  the  said  from 

and  out  of  the  said  called  the  so  being  on  the  high  seas 

as  aforesaid,  out  of  the  jurisdiction  of  any  particular  state  of  the  said 
United  States  of  America,  within  the  admiralty  and  maritime  jurisdic- 
tion of  the  said  United  States,  and  within  the  jurisdiction  of  this  court, 
into  the  sea,  by  means  of  which  said  casting,  throwing  and  pushing 
of  the  said  into  the  sea  aforesaid,  by  him  the  said  in  man- 

ner and  form  aforesaid,  he  the  said  in  the  sea  aforesaid,  with 

the  waters  thereof,  was  then  and  there  choked,  sulTocated  and  drowned, 
of  which  said  choking,  suffocation  and  drowning,  he  the  said  , 

then  and  there,  in  the  sea  aforesaid,  o\\\  of  the  jurisdiction  of  any 
particular  state  of  the  said  United  States,  within  the  admiralty  and 
maritime  jurisdiction  of  the  said  United  States  and  within  the  juris- 
diction of  this  court,  instantly  died,  and  that  the  said  {here  name  the 


HOMICIDE.  91 

remaining  ones),  tlien  and  there,  feloniously,  wilfully  and  of  their 
malice  aforethought,  were  present,  aiding,  helping,  abetting,  assisting 
and  maintaining  the  said  in  tlie  felony  and  murder  aforesaid, 

in  manner  and  form  aforesaid,  to  do  and  commit.  And  so  tlie  jurors 
aforesaid,  on  their  oath  aforesaid  do  say,  that  the  said  in  man- 

ner and  form  last  aforesaid,  piratically,  feloniously,  wilfully  and  of 
their  malice  aforethought  the  said  did  kill  and  murder,  against 

the  peace  and  dignity  of  the  United  States  of  America,  and  against 
the  form  of  the  statute  of  the  said  United  States  in  such  case  made 
and  provided. 

Eighth  count. 

(Same  as  seventh  count,  substituting  one  other  as  principal). 

JVinth  count. 

[Same  as  eighth  count,  substituting  one  other  as  principal  {if  as 
many  were  engaged,  and  if  more  than  three,  go  on  as  before  as  to 
each  person). 

Tenth  count.     By  woundivg  and  drowning. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  pre- 
sent, that  {as  in  preceding  counts  specified)  heretofore,  to  wit,  on 
the  day  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  with  force  and  arms,  npon  the  high  seas,  out  of 

the  jurisdiction  of  any  particular  state  of  the  United  States,  within 
the  admiralty  and  maritime  jurisdiction  of  the  said  United  States, 
and  within  the  jurisdiction  of  this  court,  in  and  on  board  of  a  certain 
vessel,  being  a  called  the  owned  by  citizens  of  the 

United  States  of  America,  in  and  upon  a  person  known  and  com- 
monly called  by  the  name  of  a  mariner  {or  otherwise),  in  and 
on  board  said  vessel,  in  the  peace  of  God  and  of  the  said  United 
States,  then  and  there  being,  piratically,  feloniously,  wilfully  and  of 
their  malice  aforethought,  did  make  an  assault,  and  that  they  the 
said  with  a  certain  instrument  of  called  a  which 
he  the  said  in  his  hand  then  and  there  had  and  held,  the 
said  in  and  upon  the  head,  breast  and  other  parts  of  the  body 
of  him  the  said  upon  the  high  seas,  and  on  board  the  vessel 
aforesaid,  and  out  of  the  jurisdiction  of  any  particular  state  of  the 
said  United  States,  within  the  admiralty  and  maritime  jurisdiction  of 
the  said  United  States,  and  within  the  jurisdiction  of  this  court, 
piratically,  feloniously,  wilfully  and  of  their  malice  aforethought,  did 
strike  and  beat,  giving  to  the  said  in  and  upon  the  head,  breast 
and  other  parts  of  the  body  of  him  the  said  upon  the  high 
seas,  in  and  on  board  the  vessel  aforesaid,  several  grievous  wounds, 
and  did  then  and  there,  in  and  on  board  the  vessel  aforesaid,  on  the 
high  seas  aforesaid,  out  of  the  jurisdiction  of  any  particular  state  of  the 
said  United  States,  and  within  the  jurisdiction  of  this  court,  piratically, 
feloniously,  wilfully  and  of  their  malice  aforethought,  him  the  said 
cast  and  throw  from  and  out  of  the  said  vessel  into  the  sea, 
and  plunge,  sink  and  drown  him  the  said  in  the  sea  aforesaid, 
of  which  said  grievous  wounds,  casting,  throwing,  plunging,  sinking 
and  drowning  the  said  upon  the  high  seas  aforesaid,  out  of  the 
jurisdiction  of  any  particular  state  of  the  said  United  States,  and 
within  the  jurisdiction  of  this  court,  then  and  there  instantly  died. 


92  OFFENCES  AGAmST  THE  PERSOIT. 

And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  him  the  said  then  and  there,  upon  the  high  seas 

as  aforesaid,  and  out  of  the  jurisdiction  of  any  particular  state, 
piratically,  feloniously,  wilfully  and  of  their  malice  aforethought,  did 
kill  and  murder,  against  the  peace  and  dignity  of  the  said  United 
States  of  America,  and  against  the  form  of  the  statute  of  the  said 
United  States  in  such  case  made  and  provided. 

Eleventh  count. 

{Same  as  tenth  count,  inserting  the  name  of  one  only  of  the  per- 
sons engaged,  as  princij3al,  with  the  others  as  accom-plices,  making 
the  proper  variations). 

Last  count. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  pre- 
sent, that  the  Southern  District  of  New  York  {or  otherwise),  in  the 
Second  Circuit,  is  the  district  and  circuit  in  which  the  said 
was  first  apprehended  for  the  said  offence. 

J\Iurder  on  the  high  seas,  hy  striking  with  a  handspiJie.  {fVith  com- 
mencement and  conclusion  as  adopted  in  the  federal  courts  of  Penn- 
sylvania).{r) 

In  the  Circuit  Court  of  the  United  States  of  America  in  and  for 
the  Eastern  District  of  Pennsylvania,  of  Sessions,  in  the  year, 

&c. 

Eastern  District  of  Pennsylvania,  to  wit : 

The  grand  inquest  of  the  United  States  of  America,  inquiring  for 
the  eastern  district  of  Pennsylvania,  upon  their  oaths  and  atiirmations 
respectively  do  present,  that  A.  B.,  late  of  the  district  aforesaid,  one 
of  the  crew  of  an  American  vessel,  to  wit,  the  barque  Active,  not  hav- 
ing the  fear  of  God  before  his  eyes,  but  being  moved  and  seduced  by 
the  instigations  of  the  devil,  on  the  day  of  in  the  year, 

&c.,  on  the  high  seas,  within  the  admiralty  and  maritime  jurisdiction 
of  the  United  States,  to  wit,  at  the  district  aforesaid,  and  within  the 
jurisdiction  of  this  court,  with  force  and  arms,  in  and  upon  one  C.  D., 
being  the  second  mate  of  the  said  vessel,  piratically,  feloniously,  wil- 
fully and  of  his  malice  aforethought,  did  make  an  assault ;  and  that 
the  said  A.  B.,  with  a  certain  handspike  of  the  value  of  ten  cents, 
which  he,  the  said  A.  B.  in  both  his  hands  then  and  there  had  and 
held,  him  the  said  C.  D.  in  and  upon  the  right  side  of  the  head  of 
him  the  said  C.  D.,  did  strike  and  beat,  giving  the  said  C.  D.,  then 
and  there,  with  the  handspike  aforesaid,  in  and  upon  the  right  side  of 
the  head  of  him,  the  said  C.  D.,  one  mortal  wound  and  fracture,  of 
the  length  of  five  inches  and  of  the  depth  of  two  inches,  of  which  said 
mortal  wound  and  fracture  the  said  C.  D.  then  and  there  instantly 
died.  And  so  the  grand  inquest  a-forcsaid,  upon  their  oaths  and  aliir- 
mations  aforesaid,  do  say,  that  the  said  A.  B.  the  said  C.  D.  in  man- 
ner and  form  aforesaid,  piratically,  feloniously,  wilfully  and  of  liis 
malice  aforethought,  did  kill  and  murder,  contrary  to  the  form  of  the 

(r)  I.cwis'  C.  L.  G14;  sec  U.  S.  t).  Moran,  Pliil.  April  Scss.  1837,  wlicrc  Judge  Ilopkin. 
son  suHtiiintd  a  caiiital  caiiviclion  upon  an  indictment  possessing  the  same  general  Isatures 
as  tilt  pre.senl. 


HOMICIDE.  93 

act  of  congress  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  United  States  of  America. 

And  the  grand  jury  aforesaid,  inquiring  as  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  further  present,  that  after  the 
commission  of  tlie  said  crime  on  the  high  seas,  and  within  the  juris- 
diction of  this  court,  the  said  A.  B.  was  first  brought,  to  wit,  on  or 
about  the  day  of  in  the  year,  &c.,  into  the  said  eastern 

district  of  Pennsylvania. 

Striking  with  a  glass  bottle  on  the  forehead,  on  hoard  an  American  ves- 
sel in  a  foreign  jurisdiction.  ( With  commencement  and  conclusion  as 
adopted' in  the  federal  courts  of  Massachuselts).{s) 

The  jurors  of  the  said  United  States  within  and  for  the  said 
district,  upon  their  oath  present,  that  F.  M.,  late  of  Boston,  in  said 
district,  mariner,  on  the  day  of  in  the  year,  &c.,  in  and 

on  board  of  the  barque  Eliza,  then  lying  within  the  jurisdiction 
of  a  foreign  state  or  sovereign,  to  wit,  at  one  of  the  islands  called  the 
Navigators'  Islands,  in  the  South  Pacific,  the  said  barque  then  and 
there  being  a  ship  or  vessel  of  the  United  States,  belonging  to  certain 
citizens  of  the  United  States,  whose  names  are  to  the  jurors  aforesaid 
unknown,  with  force  and  arms,  in  and  upon  one  P.  M.,  feloniously 
and  wilfully  did  make  an  assault,  and  that  the  said  F.  M.,  with  a 
certain  glass  bottle  of  the  value  often  cents,  which  he  the  said  F.  M. 
in  his  right  hand  then  and  there  held,  him  the  said  P.  M.  in  and  upon 
the  head  of  him  the  said  P.  M.,  then  and  there  feloniously  and  wilfully 
did  strike,  giving  unto  him,  the  said  P.  M.,  then  and  there,  with  the  said 
glass  bottle,  by  the  stroke  aforesaid,  in  the  manner  aforesaid,  and  upon 
the  head  of  him  the  said  P.  M.,  one  mortal  wound,  of  the  depth  of 
one  inch  and  of  the  length  of  one  inch,  of  which  said  mortal  wound 
he  the  said  P.  M.,  on  and  from  the  day  of  aforesaid, 

until  the  day  of  on  board  said  barque,  then  lying  at  the 

said  island,  did  languish,  and  languishing  did  live ;  on  which  said 
day  of  aforesaid,  the  said  P.  M.  on  the  high  seas  (the 

said  barque  having  then  left  the  said  island),  and  within  the  admiralty 
and  maritime  jurisdiction  of  the  said  United  States,  of  the  said  mortal 
wound  died.  And  so  the  jurors  aforesaid,  on  their  oath  aforesaid,  do 
say,  that  the  said  F.  M.  the  said  P.  M.  in  manner  and  form  aforesaid 
feloniously  did  kill  and  slay,  against  the  peace  and  dignity  of  the  said 
United  States,  and  contrary  to  the  form  of  the  statute  of  the  United 
States  in  such  case  made  and  provided. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  pre- 
sent, that  afterwards,  to  wit,  on  the  day  of  in  the  year, 
&c.,  the  said  F,  M.  was  first  apprehended  in  Nantucket,  in  the  said 
district  of  Massachusetts,  which  was  the  district  in  which  the  said 
F.  M.  was  first  brought  after  the  commission  of  the  offence  afore- 
said. 


(s)  TIlis  form,  as  well  as  several  that  will  follow,  I  have  obtained  through  the  valuable 
aid  of  F.  O.  Prince  Esq.  of  Boston. 


94  OFFENCES  AGAINST  THE  PERSON. 

Jlgainst  a  mother  for  drowning  her  child,  by  throiring  it  from  a  steam- 
boat on  Long  Island  Sound.  {Co7nm  en  cement  and  conclusion  as 
adopted  in  the  federal  courts  of  Massachusetts). if) 

The  jurors,  &c.,  do  present,  that  late  of  in  the  district 

of  M.,  wife  of  of  in  on  the  day  of  in 

tlie  waters  of  Long  Island  Sound,  the  same  being  an  arm  of  the  sea, 
within  the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
and  out  of  the  jurisdiction  of  any  particular  state,  in  and  on  board  of 
the  steamer  M.,  the  same  then  and  there  being  an  American  ship  or 
vessel,  in  and  upon  the  female  child  of  her  the  said  the  said 

female  child  then  and  there  being  an  infant  of  tender  age,  to  wit, 
about  the  age  of  three  weeks,  whose  name  is  as  yet  unknown  to  the 
jurors  aforesaid,  feloniously,  wilfully  and  of  her  malice  aforethought, 
did  make  an  assault,  and  that  the  said  then  and  there,  felo- 

niously, wilfully  and  of  her  malice  aforethought,  did  take  the  said 
female  child  into  both  the  hands  of  her  the  said  and  did  then 

and  there  feloniously,  wilfully  and  of  her  malice  aforethought,  cast 
and  throw  the  said  female  child  from  on  board  the  said  steamer  M. 
into  the  waters  of  the  said  Long  Island  Sound,  by  reason  of  which 
casting  and  throwing  of  the  said  female  child  into  the  waters  afore- 
said, the  said  female  child  in  the  said  Long  Island  Sound,  by  the 
waters  aforesaid  was  then  and  there  choked,  sufibcated  and  drowned, 
of  which  said  choking,  suffocating  and  drowning,  the  said  female 
child  then  and  there  instantly  died.  And  the  jurors  aforesaid,  on 
their  oath  aforesaid,  do  say,  that  the  said  the  said  female  child, 

in  the  said  arm  of  the  sea,  within  the  admiralty  and  maritime  juris- 
diction of  the  United  States,  and  without  the  jurisdiction  of  any  par- 
ticular state,  in  the  manner  and  by  the  means  aforesaid,  feloniously, 
wilfully  and  of  her  malice  aforethought,  did  kill  and  murder,  against 
the  peace  and  dignity  of  the  said  United  States,  and  contrary  to  the 
form,  &c. 

Second  count.  Omitting  averment  of  relationship,  and  charging  the 
sex  to  be  unknown. 

And  the  jurors,  &c.,  further  present,  that  late  of  in  the 

district  of  M.,  wife  of  of  in  on  the  day  of 

in  the  waters  of  the  Long  Island  Sound,  the  same  being  an 
arm  of  the  sea,  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States,  and  out  of  the  jurisdiction  of  ai^y  particular  state,  in 
and  on  board  of  the  steamer  M.,  the  same  then  and  there  being  an 
American  ship  or  vessel,  in  and  upon  a  certain  child,  the  said  child 
then  and  there  being  an  infant  of  tender  age,  to  wit,  under  the  age  of 
one  year,  whose  name  and  sex  are  unknown  to  the  jurors  aforesaid, 
feloniously,  wilfully  and  of  her  malice  aforethought,  did  make  an 
assault;  and  that  the  said  then  and  there  feloniously,  wilfully 

and  of  her  malice  aforethought,  did  take  the  said  child  into  both  the 
hands  of  her  the  said  and  did  then  and  there  feloniously,  wil- 

fully and  of  her  malice  aforethought,  cast  and  throw  the  said  child 
from  on  board  the  said  steamer  M.  into  the  waters  of  said  Long  Island 

(0  Sec  U.  S.  V.  Hewson,  7  Bost.  L.  R.  3C1  ;  Wli.  C.  L.  225. 


HOMICIDE.  95 

Sound,  by  reason  of  which  casting  or  throwing  of  the  said  child  into 
the  waters  aforesaid,  the  said  child,  in  the  said  Long  Island  Soutid, 
by  the  waters  aforesaid,  was  then  and  there  choked,  suffocated  and 
drowned,  of  which  said  choking,  suffocating  and  drowning,  the  said 
child  then  and  there  instantly  died.  And  the  jurors  aforesaid,  on 
their  oath  aforesaid,  do  say,  that  the  said  the  said  child  on  the 

said  arm  of  the  sea,  within  the  admirahy  and  maritime  jurisdiction 
of  the  United  States,  and  without  the  jurisdiction  of  any  particular 
state,  in  the  manner  and  by  the  means  aforesaid,  feloniously,  wilfully 
and  of  her  malice  aforethought  did  kill  and  murder,  against  the  peace 
and  dignity  of  the  said  United  States,  and  contrary  to  the  form,  &c. 

And  the  jurors,  &c.,  on,  &c.,  further  present,  that  afterwards,  to 
wit,  on  the  said  the  said  was  first  apprehended  at 

in  said  district  of  Massachusetts,  and  that,  &c. 

Murder  on  the  high  seas,  icith  a  hatchet.{u) 

Southern  District  of  New  York,  ss.  The  jurors  of  the  United 
States  of  America,  within  and  for  the  district  and  circuit  aforesaid, 
on  their  oath  present,  that  of  the  City  and  County  of  New 

York,  in  the  district  and  circuit  aforesaid,  mariner,  of  the  said 

city  and  county,  mariner,  and  of  the  said  city  and  county, 

mariner,  not  having  the  fear  of  God  before  their  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  on  the  day 

of  in  the  year,  &c.,  Vv^th  force  and  arms,  upon  the  high  seas, 

out  of  the  jurisdiction  of  any  particular  state  of  the  said  United 
States,  within  the  admiralty  and  maritime  jurisdiction  of  the  said 
United  States,  and  within  the  jurisdiction  of  this  court,  on  board  of  a 
certain  vessel,  being  a  called  the  owned  by  a  certain 

person  or  persons  whose  names  are  to  the  said  jurors  unknown,  then 
being  a  citizen  or  citizens  of  the  United  States  of  America,  in  and 
upon  one  in  the  peace  of  God  and  of  the  said  United  States, 

then  and  there  being,  on  board  the  said  called  the  on 

the  high  seas,  aut  of  the  jurisdiction  of  any  particular  state,  and  with- 
in the  jurisdiction  of  this  court,  piratically,  feloniously,  wilfully  and 
of  their  malice  aforethought,  did  make  an  assault;  and  that  the  said 
with  a  certain  instrument  of  wood  and  iron  called  a  hatchet 
(or  other  instrument),  of  the  value  of  which  the  said 

in  his      ,  ^    hand  then  and  there  had  and  held,  the  said  in  and 

upon  the  head,  face,  breast  and  other  parts  of  the  body  of  him  the 
said  then  and  there  being,  on  the  high  seas,  in  the  afore- 

said, and  out  of  the  jurisdiction  of  any  particular  state,  and  within 
the  jurisdiction  of  this  court,  then  and  there  feloniously,  wilfully  and 
of  his  malice  aforethought,  did  strike,  giving  to  the  said  then 

and  there,  with  the  aforesaid,  by  such  striking  with  the 

aforesaid,  in  manner  aforesaid,  in  and  upon  the  head,  face,  breast 
and  other  parts  of  the  body  of  him  the  said  several  mortal 

strokes,  wounds  and  bruises,  to  wit,  one  mortal  wound  on  of 

(u)  On  this  indictment  the  defendants  were  convicted  i.T  the  Circuit  Court  for  the 
Southern  District  of  Ntw  York  iii  U.  S.  c.  WilJiclia  tl  al. 


96  OFFENCES  AGAINST  THE  PERSON. 

Iiim  the  said  of  the  length  of  inches,  and  of  the  depth  of 

inches,  one  mortal  wound  on  the  of  him  the  said 

of  the  length  of  inches,  and  of  the  depth  of  inches,  and 

one  mortal  wound  on  the  of  him  the  said  of  the  lengih 

of  inches,  and  of  the  depth  of  inches,  of  which  said  mor- 

tal wounds  the  said  from  the  said  day  of  in  the 

year  aforesaid,  until  the  day  of  the  same  month  {or  otherwise) 

of  in  the  year  aforesaid,  on  the  high  seas  aforesaid,  out  of  the 

jurisdiction  of  any  particular  state,  and  within  the  jurisdiction  of 
this  court,  did  languish  and  languishing  did  live ;  on  which 
said  day  of  in  the  year  aforesaid,  the  said 

on  the  high  seas  aforesaid,  out  of  the  jurisdiction  of  any  particular 
state,  and  -jvithin  the  jurisdiction  of  this  court,  of  the  said  mortal 
wounds,  died.     And  that  the  said  and  then  and  there 

feloniously,  wilfully  and  of  their  malice  aforethought,  were  present 
aiding,  ahetting,  comforting,  assisting  and  maintaining  the  said 
in  the  felony  and  murder  aforesaid,  in  manner  and  form  aforesaid,  to 
do  and  commit,  and  so  the  jurors  aforesaid,  upon  their  oath  aforesaid 
do  say,  that  the  said  [here  insert  the  names  of  all)  in  manner 

and  form  aforesaid,  piratically,  feloniously,  wilfully  and  of  their 
malice  aforethought,  die  said  did  kill  and  murder,  against  the 

peace  and  dignity  of  the  United  States  of  America,  and  the  form  of 
the  statute  of  the  said  United  States  in  such  case  made  and  provided. 

Second  count. 

{Same  as  preceding  count,  inserting  the  name  of  one  other  as 
principal ;  and  also,  instead  of  "  being  a  called  the 

owned  by  a  certain  person  or  persons,  whose  names  are  to  the  said 
jurors  unknown,  then  being  a  citizen  or  citizens  of  the  United  States 
of  America,"  insert  "  being  a  called  the  owned  by 

citizens  {or  a  citizen)  of  the  United  States  of  America)." 

Third  count. 

{Sayne  as  preceding  count,  inserting  the  name  of  one  other  per- 
son as  principal  {if  as  many  as  three  were  engaged). 

Fourth  count. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  pre- 
sent, that  of  the  City  and  County  of  New  York,  in  the  district 
and  circuit  aforesaid,  mariner,  of  the  said  city  and  county,  in 
the  district  and  circuit  aforesaid,  mariner,  and  of  the  said  city 
and  county,  in  the  district  and  circuit  aforesaid,  mariner,  {if  as  many 
are  specified  in  the  complaint),  not  having  the  fear  of  God  before 
their  eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,  on  the  day  of  in  the  year,  &c.,  whh  force  and 
arms,  upon  the  high  seas,  out  of  the  jurisdiction  of  any  particular 
state  of  the  said  United  States,  within  the  admiralty  and  maritime 
jurisdiction  of  the  said  United  States,  and  within  the  jurisdiction  of 
this  court,  on  board  of  a  certain  vessel  being  a  called  the 
owned  by  citizens  {or  a  citizeji)  of  the  United  States  of  Ame- 
rica, in  and  upon  one  in  the  peace  of  God  and  the  said  United 
States,  then  and  there  being,  on  board  the  said  called  the 
on  the  iiigh  seas,  out  of  the  jurisdiction  of  any  particular  state,  within 
the  admiralty  and  maritime  jurisdiction  of  the  said  United  States  of 


HOMICIDE.  97 

America,  and  within  the  jurisdiction  of  this  court,  piratically,  felo- 
niously, wilfully  and  of  their  malice  aforethought,  did  make  an  as- 
sault, and  that  the  said  {specify  one),  with  a  certain  instrument 
of            called  a            of  the  value  of  which  he  the  said 
then  and  there,  in  his              hand  had  and  held,  and  the  said 
{specify^  another),  with  a  certain  other  instrument  of  called  a 

of  the  value  of  which  he  the  said  in  his 

hand  then  and  there  had  and  held,  and  the   said  {specify 

another  if  as  7nany  as  three  were  engaged),  with  a  certain  instru- 
ment of  ofihe  value  of  which  lie  the  said  in  his 
hand  then  and  there  had  and  held,  the  said  in  and  upon 
the  head,  face,  breast  and  other  parts  of  the  body  of  him  the  said 
then  and  there  being  on  the  liigh  seas,  in  the  aforesaid, 
out  of  the  jurisdiction  of  any  particular  state,  and  within  the  juris- 
diction of  this  court,  then  and  there,  feloniously,  wilfully  and  of  their 
malice  aforethought,  did  strike,  giving  to  the  said  then  and 
there,  with  the  aforesaid,  by  such  striking,  with  the 
aforesaid,  in  manner  aforesaid,  in  and  upon  the  head,  face,  breast 
and  other  parts  of  the  body  of  him  the  said  several  mortal 
strokes  and  wounds,  to  wit,  one  mortal  stroke  and  wound  on  the 
of  him  the  said  of  the  length  of  inches,  and  of  the 
depth  of  inches,  one  mortal  stroke  and  wound  on  the 
of  him  the  said  of  the  length  of  inches,  and  of  the  depth 
of  inches,  one  mortal  stroke  and  wound  on  the  side  of  the 
breast  of  him  the  said  of  the  length  of  inches,  and  of  tiie 
depth  of  inches,  and  one  other  mortal  stroke  and  wound  on  the 
of  him  the  said  of  the  length  of  inches,  and  of  the 
depth  of  inches,  of  which  said  mortal  strokes  and  wounds  the 
said  from  the  said  day  of  in  the  year,  &c.,  on  the 
high  seas  aforesaid,  out  of  the  jurisdiction  of  any  particular  state,  and 
within  the  jurisdiction  of  this  court,  did  languish  and  languishing  did 
live,  until  the  day  of  the  same  month  {or  otherwise)  of 
in  the  year  last  aforesaid,  on  which  said  day  of  in  the 
year  last  aforesaid,  the  said  on  the  high  seas  aforesaid,  out  of 
the  jurisdiction  of  any  particular  state,  and  within  the  jurisdiction  of 
this  court,  of  the  said  mortal  strokes  and  wounds  died. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  say  that  they 
the  said  him  the  said  in  the  manner  and  by  the  means 

last  aforesaid,  on  the  high  seas,  out  of  the  jurisdiction  of  any  particu- 
lar state,  and  within  the  jurisdiction  of  this  court,  piratically,  felo- 
niously, wilfully  and  of  their  malice  aforethought,  the  said  did 
kill  and  murder,  against,  &c.,  and  against,  &c. 

Last  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  the  Southern  District  of  New  York,  in  the  second  circuit 
aforesaid,  is  the  district  and  circuit  in  which  the  said  offenders,  viz. 
the   said-  were   first  brought  and  apprehended   for  the  said 

offences,  (if  ?^) 

{uu)  As  a  matter  of  course,  uhcre  the  party  or  parties  havo  not  been  arrested,  but  wlicre 
the  indictment  is  drawn  for  the  ]Jurpose  of  issuing  a  bench  warrant,  the  count  in  conchi- 
sion  is  not  to  be  put  in.     SVIiere  an  offence  lias  been  conmiitted  ayainst  tlie  laws  of  the 


98  orrENCES  against  the  person. 

MansIavgJiter  on  the  high  seas.{u) 

First  count.   Droicnivg,  ^-c,  on  a  vessel  ichose  name  was  unlawwn,  ^-c. 

The  grand  inquest  of  the  United  States  of  America,  inquiring  iii 
and  for  the  Eastern  District  of  Pennsylvania,  on  their  oaths  and  affir- 
mations respectively,  do  present,  that  A.  W.  H.,  late  of  the  district 
aforesaid,  mariner,  not  having  the  fear  of  God  before  his  eyes,  but 
being  moved  and  seduced  by  the  instigation  of  the  devil,  on  the 
day  of  in  the  year,  &c.,  upon  the  high  seas,  within  the 

admiralty  and  maritime  jurisdiction  of  the  United  States,  and  out  of 
the  jurisdiction  of  any  particular  state,  and  within  the  jurisdiction  of 
tJiis  court,  on  board  of  a  certain  vessel,  to  wit,  a  vessel  tiie  name 
whereof  is  to  the  jurors  unknown,  then  and  there  belonging  to  a 
cilizen  of  the  United  States,  to  wit,  one  J.  P.  V.,  late  of  the  district 
aforesaid,  with  force  and  arms,  in  and  upon  a  person  known  and 
commonly  called  by  the  name  of  F.  A.,  in  and  on  board  of  said  ves- 
sel, in  the  peace  of  God  and  of  the  United  States  then  and  there  being, 
unlawfully  and  feloniously  did  make  an  assault;  and  that  he  the  said 
A.  W.  H.,  then  and  there  on  board  of  the  said  vessel,  upon  the  high 
seas,  within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  out  of  the  jurisdiction  of  any  particular  state,  and  within 
the  jurisdiction  of  this  court,  with  force  and  arms,  imlawfully  and 
feloniously  did  cast  and  throw  the  said  F.  A.  from  and  out  of  the  said 
vessel  into  the  high  seas  there,  by  means  of  which  said  casting  and 
throwing  of  him  the  said  F.  A.  from  and  out  of  the  said  vessel  into 
the  high  seas  aforesaid,  he  the  said  F.  A.,  in  and  with  the  water 
thereof,  upon  the  high  seas,  within  the  admiralty  and  maritime  juris- 
diction of  the  United  Slates,  and  out  of  the  jurisdiction  of  any  par- 
ticular state,  and  within  the  jurisdiction  of  this  court,  then  and  there 
was  sutlbcated  and  drowned,  of  which  said  suffocation  and  drowning 
he  the  said  F.  A.  did  then  and  there  instantly  die.  And  so  the  grand 
inquest  aforesaid,  inquiring  as  aforesaid,  on  their  oaths  and  affirma- 
tions aforesaid,  do  say,  that  the  said  A.  W.  H.,  him  the  said  F.  A.  in 
the  manner  and  by  the  means  aforesaid,  unlawfully  and  feloniously 
did  kill,  contrary,  &c.,  and  against,  &c. 

Second  count.     Same  on  a  long-boat  belonging  to  J.  P.  V.,  <^'C. 

And  the  grand  inquest  aforesaid^  inquiring  as  aforesaid,  on  their 
oaths  and  aliirmations  aforesaid,  do  further  present,  that  afterwards, 

United  States  of  America,  under  the  admiralty  and  maritime  jurisdiction,  in  or  near  a  fo- 
reijrn  port  or  phicc,  in  and  on  board  of  a  vessel  belonging-  in  whole  or  in  part  to  a  citizen 
or  citi/.ens  of  tlic  United  States  of  America  (sec  act  of  congress  of  March  3d,  1895,  s.  5), 
the  indictment  should,  after  beginning  in  the  usual  way,  proceed  thus:  on  the  high  seas, 
near,  «!k,c.,  or,  at  a  jjort  or  place  within  the  jurisdiction  of  a  foreign  state  or  sovereign,  to 
wit,  (name  distinctly  the  i>ort  or  place,  and  the  slate  or  sovereign  under  whose  jurisdiction 
it  is),  on  waters  out  of  tiie  jurisdiction  of  any  particular  state  of  the  said  United  States  of 
Americn,  within  the  admiralty  and  maritime  jurisdiction  of  the  said  United  States,  and 
within  the  jurisdiction  of  this  court,  in  and  on  board  of  a  certain  American  vessel,  being 
a  called  the  belonging  in  whole  or  in  part,  to  a  certain   person  or  persons, 

whose  name  or  names  arc  to  the  said  jurors  unknown,  then  and  still  being  a  citizen  or 
citizens  of  the  said  United  t^tntes  of  America,  (fee. 

(r)  'I'he  deli  luhmt  was  ('onvieted  undiT  this  indictment,  and  was  sentenced  to  a  small 
jiunishniint,  hut  was  afterwards  jjardoncd  by  the  president.  The  case  was  of  great  sin- 
gularity, involving  the  (pjestion,  win  thcr  a  manner  in  a  case  of  extreme  necessity,  is  jus- 
liiffi  in  throwmg  overboard  a  passenger  lioin  a  boat  unable  to  hold  the  two;  see  Wh.  C. 
L.  iitii. 


CONCEALING  DEATH  OF  BASTARD  CHILD.  99 

to  wit,  on  the  day  and  year  aforesaid,  the  said  A.  W.  H.,  not  havina; 
the  fear  of  God  before  his  eyes,  but  being  moved  and  seduced  by  the 
instigations  of  the  devil,  upon  the  high  seas,  within  the  admiralty  and 
maritime  jurisdiction  of  the  United  States,  and  out  of  the  jurisdiction 
of  any  particular  state,  and  within  the  jurisdiction  of  this  court,  on 
board  of  a  certain  vessel,  to  wit,  the  long-boat  of  the  ship  W.  B.,  then 
and  there  belonging  to  a  citizen  of  the  United  States,  to  wit,  one  J.  P. 
v.,  late  of  the  district  aforesaid,  with  force  and  arms,  in  and  upon  a 
person  known  and  commonly  called  by  the  name  of  F,  A.,  in  and 
board  of  said  vessel  in  the  peace  of  God  and  of  the  United  States  then 
and  there  being, unlawfully  and  feloniously  did  make  an  assault;  and 
that  he  the  said  A.  W.  H.  then  and  there,  on  board  of  the  said  vessel 
upon  the  high  seas,  within  the  admiralty  and  maritime  jurisdiction  of 
the  United  States,  and  out  of  the  jurisdiction  of  any  particular  state, 
and  within  the  jurisdiction  of  this  court,  with  force  and  arms,  unlaw- 
fully and  feloniously  did  cast  and  throw  the  said  F,  A.  from  and  out 
of  the  said  vessel  into  the  high  seas,  by  means  of  which  said  casting 
and  throwing  of  him  the  said  F.  A.,  from  and  out  of  the  said  vessel 
into  the  high  seas  aforesaid,  he  the  said  F.  A.,  in  and  with  the  waters 
thereof,  upon  the  high  seas  aforesaid,  within  the  admiralty  and  mari- 
time jurisdiction  of  the  United  States,  and  out  of  the  jurisdiction  of 
any  particular  state,  and  within  the  jurisdiction  of  this  court,  then  and 
there  was  suffocated  and  drowned,  of  which  said  suffocation  and 
drowning  he  the  said  F.  A.  did  then  and  there  instantly  die.  And 
so,  &c.  {as  in  first  count). 

Final  count.  And  the  grand  inquest  aforesaid,  inquiring  as  afore- 
said, on  their  oaths  and  affirmations  aforesaid,  do  further  present,  that 
after  the  commission  of  the  crimes  so  as  aforesaid  committed  on  the 
high  seas,  and  out  of  the  jurisdiction  of  any  particular  state,  to  wit,  on 
the  day  of  the  said  A.  W.  H.,  the  offender  aforesaid, 

was  apprehended  in  the  Eastern  District  of  Pennsylvania. 

Misdemeavor  in  concealing  death  of  bastard  child  bt/  casting  it  in  a 
ivell,  under  the  Pennsylvania  staiute.{iv) 

And  the  inquest  aforesaid,  on  their  oaths  and  affirmations  afore- 
said, do  further  present,  that  the  said  R.  P.,  on  the  said  day  of 

{w)  It  is  not  necessary  to  set  forth  in  what  manner  or  by  what  arts  the  mother  endea- 
voured to  conceal  the  deatli  of  the  child;  Boyle  v.  Com.,  2  S.  &  R.  40.  It  is  a  fatal  objec- 
jcction  t!iat  an  indictment  for  concealinaf  tiie  death,  does  not  directly  aver  the  death  of  the 
child.  It  is  not  sufficient  to  aver  tliat  the  defendant  "did  endeavour  privately  to  conceal 
the  death  of  the  said  tcmale  bastard  child ;"  Douglas  v.  Com.,  8  Watts  535  ;  Com.  v.  Clark, 
2  Ash.  105.  Whether  the  child  be  born  dead  or  alive  would  seem  to  be  immaterial; 
Donorjas  v.  Com.,  8  Watts  535,  Rogers  J.;  see  R.  v.  Coxhcad,  1  C.  &,  K.  623.  The  con- 
cealment  is  not  conclusive  evidence  of  the  fact,  unless  the  circumstances  attending  it  are 
sufficient  to  satisfy  the  jury  that  the  mother  did  wilfully  and  mahciously  destroy  the  child  ; 
Penua.  v.  IVI'Kce,  Add.  2. 

Under  the  North  Carolina  act  against  the  mother,  for  concealing  the  birth  of  her  bastard 
child,  it  is  said  that  it  is  not  incumbent  on  the  |)rosocution  to  show  that  the  child  was  born 
alive,  but  the  burthen  of  showing  the  contrary  is  on  the  part  of  the  accused  ;  (see  R.  v.  Dong- 
Lis,  1  Mood.  C.  C.  462) ;  and  that  the  corpus  delicti  is  concealing  the  death  of  a  bein?  upon 
whom  the  crime  of  murder  would  have  been  committed ;  and,  therefore,  if  the  child  be 
born  dead,  concealment  is  not  an  offbnce  against  the  statute ;  State  v.  Joiner,  4  Hawks  350. 


100  orrENCES  agaiiVSt  the  persox. 

in  the  year  aforesaid,  being  big  with  a  male  child,  the  same 
day  and  year,  in  the  coimty  aforesaid,  by  the  providence  of  God  did 
brmg  forth  the  said  child  of  the  body  of  her  tiie  said  R.,  alone  and  in 
secret,  which  said  male  child  if  it  were  born  alive  wonld  by  the  laws 
of  this  commonwealth  be  a  bastard,  and  that  the  said  R.  afterwards, 
to  wit,  on  the  day  of  in  the  year  aforesaid,  as  soon  as 

tiie  said  male  child  was  born,  did  endeavour  privately  to  conceal  the 
death  of  the  said  child,  and  did  take  the  said  child  into  both  the  hands 
of  her  the  said  R.,  and  did  then  and  there  wilfully  and  privately  cast 
and  throw  the  said  child  into  and  down  the  well  of  a  certain  privy 
there  situate,  so  that  it  might  not  come  to  hght,  whether  the  said 
cliild  was  born  dead  or  alive,  or  whether  it  were  murdered  or  not, 
contrary,  &c.,  and  against,  &c. 

Same  ichere  means  of  concealment  are  not  stated.{x) 

That  J.  B.,  late  of  the  county  aforesaid,  'spinster,  on,  &c.,  at,  &c., 
being  big  with  a  certain  female  infant,  the  same  .day  and  year,  at  the 
county  aforesaid,  did  bring  fortli  the  said  inl'ant  of  the  body  of  her  the 
said  A.,  alone  and  in  secret,  which  same  infant,  so  being  brought 
forth  alive,  was  by  the  laws  of  this  commonwealth  a  bastard;  and 
that  the  said  S.  B.  afterwards,  to  wit,  the  same  day  and  year  afore- 
said (the  said  female  infant  having  on  the  day  and  year  last  aforesaid, 
at  the  township  and  county  aforesaid,  died)  did  endeavour  privately 
to  conceal  the  death  of  the  said  female  infant,  so  that  it  might  not 
come  to  hght  whether  the  said  female  infant  was  born  dead  or  alive, 
or  whether  the  said  female  infant  was  murdered  or  not,  contrary,  &c. 
and  against,  &.c. 

A  mother  having  caused  the  body  of  her  cliild  to  be  buried  privatclj',  her  object  being  to 
conceal  its  birth,  it  was  lield,  under  the  stat.  43  Geo.  III.  c,  58,  and  9  Geo.  IV.  c.  31,  s.  14, 
from  which  tlie  American  acts  differ  but  little,  that  the  fact  of  her  having  previously  ac- 
knowledged the  birth  to  several  persons,  did  not  prevent  iicr  conviction  of  the  concealment ; 
R.  i\  Douglas,  1  Mood.  C.  C.  462,  Where  the  woman  was  delivered  of  a  child,  the  dead 
body  of  which  was  found  in  a  bed  amongst  tJie  feathers,  but  tliere  was  no  evidence  to  show 
who  put  it  there,  and  it  appeared  that  the  mother  had  sent  for  a  surgeon  at  the  time  of  her 
confinement,  and  had  prepared  cliild's  clothes,  the  judge  directed  an  acquittal  of  the  charge 
for  endeavouring  to  conceal  tlie  birth  ;  R.  v.  Higley,  4  C.  ^  P.  366.  Wliere  a  woman, 
delivered  of  a  seven  months'  child,  threw  it  down  the  privy,  and  it  api)cared  that  another 
woman,  charged  as  an  accomplice,  knew  of  the  birth;  upon  an  indictment  for  murder 
against  the  two,  the  jury  found  tlie  mother  guilty  of  the  concealment;  and  tiie  point  being 
saved  upon  a  doubt,  whether  it  was  a  case  within  the  stat.  43  Geo.  III.  c.  58,  as  a  second 
person  knew  of  tiie  birth,  the  judges  held  that  the  act  of  throwing  tlie  child  down  the  privy 
was  evidence  of  the  endeavour  to  conceal  the  birth,  and  tliat  the  conviction  was  right;  R. 
V.  Cornwall,  R.  &,  R.  336.  An  indictment  on  stat.  S)  Geo.  IV.  c.  31,  s.  14,  for  endeavour- 
ing to  conceal  the  birth  of  a  dead  child,  need  not  state  wiiether  the  child  died  before,  at  or 
after  its  birtii ;  Reg.  v.  Coxliead,  1  C.  &.  K.  623.  An  indictment  which  charged  thrit 
the  defendant  did  cast  and  tlirow  tlie  dead  body  of  the  cliild  into  soil  in  a  certain  privy, 
"and  did  thereby,  tlien  and  there,  unlawfully  dispose  of  the  dead  body  of  tlie  said  child, 
and  endeavour  to  conceal  the  birth  thereof,"  sufficiently  charges  the  endeavour  to  endea- 
vour to  conceal  the  birth,  as  the  word  "  thereby"  ap|)lics  to  the  endeavour,  as  well  as  to  the 
disposing  of  the  dead  body;  R.  v.  Douglas,  1  Mood.  C  C.  462. 

liy  the  act  of  22d  April,  ll'J'i  (Purd.  5.32),  the  grand  jury  may  join  a  count  for  murder 
with  a  count  for  concealment.     For  forms  for  "Murder"  in  sucli   cases,  see  ante,  77-H-ii. 

(x)  See  Boyle  v.  Com.,  2  S.  &  R.  40,  where  this  count  was  sustained.  The  usual  form, 
however,  is  to  charge  the  ofi'cncc  as  a  "child,"  ;iiid  not  an  "infant,"  and  I  Wfnild  add 
onoMier  count  bo  stating  it,  notwithstanding  the  sanction  by  the  Supreme  Court  of  the  form 
in  the  text. 


RAPE.  101 

Endeavour  to  conceal  the  birth  of  dead  child,  under  the  English  sta- 
tute.[y) 

That  A.  C,  late  of,  &c.,  on,  &c.,  at,  &c.,  being  big  with  a  certain 
female  child,  afterwards,  to  wit,  on  the  same  day  and  in  the  yen r 
aforesaid,  in  the  parish  aforesaid,  in  the  county  aforesaid,  of  the  said 
child  was  delivered. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  the  said  A.  C.  afterwards,  to  wit,  on  the  same  day,  and  in 
the  year  aforesaid,  with  force  and  arms,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  with  both  her  hands  unlawfully  did  cast  and  throw 
the  dead  body  of  the  said  child  into  and  amongst  the  soil,  waters  and 
filth  then  being  in  a  certain  privy  there,  and  did  thereby  then  and 
there  unlawfully  dispose  of  the  dead  body  of  the  said  child,  and  en- 
deavour to  conceal  the  birth  thereof,  against,  &c.,  and  against,  &c. 


CHAPTER  II. 

RAPE. 

General  Form. 

That  J.  S.,  late  of  the  parish  of  B.,  in  the  county  of  INI.,  labourer, 
on  the  day  of  &c.,  with  force  and  arms,(a)  at  the  parish 

aforesaid,  in  the  county  aforesaid,  in  and  upon  one  A.  N.((^)  in  the 
peace  of  God  and  the  said  state  then  and  there  being,  violently  and 
feloniously  did  make  an  assault, (c)  and  her  the  said  A.  N.  then  and 
there  forcibly  and  against  her  will(f/)  feloniously  did  ravish  and  car- 
nally know;(fi)  against,  &c.  {Conclude  as  in  book  1,  chapter  3. 
iddd  a  count  for  assault  with  intent  to  ravish).[f) 

(y)  R.  V.  Coxhead,  1  C.  &  K.  623, 

(a)  These  words  are  surplusage;  see  ante,  p.  9. 

(6)  It  is  not  necessary  to  aver  A.  N.  to  have  been  a  woman ;  State  v.  Farmer,  4  Iredell 
224 ;  nor  that  slie  was  over  the  age  hmited  by  the  statute  for  infancy ;  ib. 

(c)  An  indictment  cliarging  that  tiie  defendant  in  and  upon  A.  B.,  "feloniously  and 
violently  did  make  (omitting  the  words  'an  assault'),  and  her  the  said  A.  B.  then  and 
there,  against  her  will,  violently  and  feloniously  did  ravish  and  carnally  know,"  &,c.,  was 
lieid  suiiicient  in  arrest  of  judgment;  Reg.  v.  Allen,  1  Mood.  C.  C.  179  ;  9  C.  &  P.  521. 

{(1)  Though  these  words  used  to  be  considered  essential.  State  v.  Jim,  1  Dev.  142,  ytt 
it  has  been  held  that  the  clause  might  be  stip|)lied  by  "  feloniously  did  ravish  and  carnally 
know  her ;"  Harman  v.  Com.,  12  S.  &,  R.  69  ;  Corn,  v   Bennett,  2  Va.  Cases  235. 

(e)  The  omission  of  the  "  carnaliter  cognomt"  makes  the  indictment  bad  on  demurrer, 
but,  as  it  seems,  not  after  verdict,  under  the  late  English  statute  of  jeofails;  R.  v.  Warrei;, 
1  Russ.  686. 

A  general  conviction  of  defendant,  charged  both  as  principal  in  the  first  degree,  and  as 

9* 


102  SODOMY. MAYHEM. 

CHAPTER  III. 

SODOMT.(«) 

That  A.  B.,  on,  &c.,  at,  &c.,  in  and  upon  T.  L.,  then  and  there 
being,  feloniously  did  make  an  assault,  and  then  and  there  felo- 
niously, wickedly,  diabolically  and  against  the  order  of  nature,  had  a 
venereal  affair  with  the  said  T.  L.,  and  then  and  there  carnally  knew 
the  said  T.  L.,  and  then  and  there  feloniously,  wickedly  and  dia- 
bolically, and  against  the  order  of  nature,  with  the  said  T.  L.  did 
commit  and  perpetrate  that  detestable  and  abominable  crime  of  bug- 
gery(Z»)  (not  to  be  named  among  christians),  to  the  great  displeasure 
of  Almighty  God,  to  the  great  scandal  of  all  human  kind,  against,  &.c. 
{Conclude  as  in  book  1,  chap.  3). 


CHAPTER  IV. 


MAYHEM. 


Indictment  on  Coventry  Act,  22  and  23  Car.  2,  c.  1,  for  felony  by  slit- 
ting a  nose,  and  against  the  aider  and  abeltor.{a) 

That  J.  W.,  late  of,  &c.,  labourer,  and  A.  C,  late  of,  &.c,,  esq.,  on, 
&c.,  contriving  and  intending  one  E.  C,  to  maim  and  disfigure,(6)  at, 
&.C.,  with  force  and  arms,  in  and  upon  the  said  E.  C,  in  the  peace  of 

an  aider  and  abettor  of  otlier  men  in  rape,  is  valid  on  the  count  cliarging  liim  as  principal. 
And  on  such  an  indictment,  evidence  may  be  given  of  several  rapes  on  the  same  woman, 
at  the  same  time,  by  the  defendant  and  other  men,  each  assisting  the  other  in  turn,  with- 
out i)utling  the  prosecutor  to  elect  on  which  cou)it  to  proceed  ;  R.  i;.  Folkes,  1  Mood.  C.  C. 
344,R.  w.  Gray,  7C.  &  P.  1G4. 

An  indictment  is  good  whicii  charges  tliat  A.  committed  a  rape,  and  that  B.  was  pre- 
sent aiding  and  abetting  him  in  the  commission  of  the  felony  ;  for  the  party  aiding  may 
be  eiiarged  eitlier  as  he  was  in  law,  a  principal  in  the  first  degree,  or  as  he  was  in  fact,  a 
principal  in  the  second  degree ;  R.  v.  Crisham,  C.  &  M.  187. 

(  f)  See  ante,  p.  13,  as  to  the  propriety  of  such  a  joinder. 

(a)  Stark.  C.  P.  434. 

(t)  This  word  is  essential;  Co.  Ent.  351  ;  Fost.  424;  3  Ins.  59. 

(a)  Chit.  C.  li.  vol.  3,  786.  Though  mayhem  is  still  an  offence  at  common  law,  and  as 
such  is  the  subject  of  prosecutiona  in  England,  there  are  lew  precedents  of  indictments 
lor  it  as  a  common  law  offence.  This  Ibrm  was  taken 'by  Mr.  Chitty  (3  C.  L.  7t6), 
from  the  Cro.  C.  C.  iiGl.  In  the  United  Stales,  however,  so  far  as  the  ground  is  uuoccu- 
pied  by  statute,  the  common  law  remedy  remains,  and  mayhem  may  still  be  treated  us 
a  connuon  law  offence. 

(h)  The  intent  as  thus  laid  is  necessary  ;  1  East  P.  C.  402  ;  sec  ante,  p.  11. 


RAPE.  103 

God  and  the  said  state,  then  and  there  being,  on  purpose, (c)  and  on 
{or  "of  their")  mahce  aforethought, (c)  and  by  lying  in  wait,  unlaw- 
fully and  feloniously(^)  did  make  an  assault,  and  tlie  said  J.  W.,  with 
a  certain  iron  bill  of  the  value  of  one  penny,  which  he  the  said  J. 
W.  in  his  right  hand  then  and  there  had  and  held,(e)  the  nose  of  the 
said  E.  C,  on  purpose,  and  of  his  malice  aforethought,  and  by  lying 
in  wait,  then  and  there  unlawfully  and  feloniously(/)  did  slit(^)  witli 
intention,  the  said  E.  C,  in  so  doing,  in  manner  aforesaid,  to  maim 
and  disfigure,  and  that  the  aforesaid  A.  C,  at  the  time  the  aforesaid 
felony  by  the  said  J.  W.,  in  manner  and  form  aforesaid,  was  done 
and  committed,  to  wit,  on  the  said,  &c.,  at,  &c.,  with  force  and  arms, 
on  purpose,  and  of  his  malice  aforethought,  and  by  lying  in  wait, 
unlawfully  and  feloniously  was  present  {knoivi7ig  of  and  privy  to 
the  said  felony, {h)  aiding  and  abetting  the  said  J.  W.,  in  the  felony 
aforesaid,  in  manner  and  form  aforesaid  done  and  committed.  And 
so  the  jurors,  &c.,  do  say,(/)  that  the  said  J.  W.  and  A.  C,  on  the 
said,  &c.,  at,  &c.,  aforesaid,  with  force  and  arms,  on  purpose,  and  of 
their  malice  aforethought,  and  by  lying  in  wait,  the  felony  aforesaid, 
in  form  aforesaid,  unlawfully  and  feloniously  did  do  and  commit, 
and  each  of  them  did  do  and  commit,  against,  &c.,  and  against,  &c. 

Mayhem  by  slitting  the  nose,  under  the  Massachusetts  statute.{j) 

That  A.  B.,  of  &c.,  on  with  force  and  arms,  at  in  the 

county  aforesaid,  contriving  and  intending  one  C.  D.  to  maim  and  dis- 
figure, in  and  upon  the  said  C.  D.,  in  the  peace  of  said  common- 
wealth then  and  there  being,  with  set  purpose  and  aforethought 
malice,  and  with  intention  him  the  said  C.  D.  to  maim  and  disfigure, 
unlawfully  and  maliciously(A-)  did  make  an  assault ;  and  that  he  the 


(c)  The  omission  of  these  words  would  be  unsafe ;  1  East  P.  C.  402 ;  Penna.  v.  M'Birnie, 
Add.  R.  28. 

id)  This  is  requisite;  Hawk.  b.  2,  c.  23,  s.  18;  Chit.  C.  L.  786,  787 ;  see  post,  note/. 

(fi)  Tlie  same  precision  necessary  as  in  murder ;  Hawk.  b.  2,  c.  23,  s.  79. 

(/)  In  England,  3  Chit.  C.  L.  786,  and  in  Pennsylvania,  post,  p.  104,  the  practice  is  to 
charge  the  offence  as  a  felony  ;  but  in  Massachusetts  and  Alabama  it  is  treated  as  a  misde- 
meanor. 

"  Every  indictment  for  maiming,"  says  Mr.  Chitty,  3  C.  L.  787,  "though  at  common 
law,  must  charge  the  offence  to  have  been  done  feloniously,  because  the  defendant 
was  formerly  punished  with  loss  of  member;  Hawk.  b.  2,  c.  23,  s.  18.  The  term  ma- 
heimavit  was  always  essential  forn:ierly,  as  the  word  maim  is  at  present;  ib.  s.  17;  Com. 
i;.  Newell,  7  Mass.  R.  245.  Tlje  wound  should  be  set  foith  with  the  same  degree  of 
precision  as  in  cases  of  murder;  and  a  similar  conclusion  must  be  drawn,  that  so 
the  defendant  did  feloniously  maim,  &lc.,  though  this  will  not  supply  the  omission  of  either 
of  these  words  in  the  previous  description  of  the  violence;  1  East  P.  C.  4U2.  In  case  of 
indictment  on  the  statute  of  Charles,  its  language  must  be  accurately  followed  ;  so  that  the 
expressions  on  purpose,  of  malice  aforethought,  and  by  lying  in  wait,  as  well  as  the  allega- 
tion that  the  act  was  done  with  intent  to  maim  and  disfigure,  are  material;  ib.;  Penna.  v. 
M'Birnie,  Add.  R.  28. 

(g)  The  wound  should  be  laid  with  the  same  precision  as  in  murder ;  3  Chit.  C.  L.  756, 

{h)  Tlie  words  of  the  statute. 

(i)  Tills  conclusion  is  necessary ;  1  East  P.  C.  402 ;  Chit.  C.  L.  786,  787. 

(j)  Davis'  Prec.  1 67  ;  see  a  precedent  in  3  Chit.  787,  on  the  Coventry  Act,  22  and  23  Car. 
II.  c.  1,  and  also  6th  cd.  of  Cro.  C.  C.  p.  430. 

{k)  The  word  feloniously  is  used  in  the  English  precedents  as  well  as  in  those  in  Penn- 
sylvania,  as  will  be  presently  seen,  but  is  clKin<r((l  tor  maliciously  in  this,  u]K)n  the  authority 
of  Com.  V.  JNcwall  el  uL,  7  Mass.  R.  215.    "  This  forin,"  says  Mr.  Davis,  "  will  answer  ibr 


104  OFFENCES  AGAINST  THE  PERSON. 

said  A.  B.,  with  a  certain  iron  bill  of  the  value  of  five  confs,(/) 
which  he  the  said  A.  B.,  in  his  right  hand  then  and  there  had  and 
held,  the  nose  of  him  the  said  C.  D.,  with  set  purpose  and  afore- 
thought malice,  then  and  there,  unlawfully  and  maliciously  did  slit, 
with  intention  the  said  C,  D.,  in  so  doing,  in  manner  aforesaid,  to 
maim  and  disfigure  ;  against,  &c.,  and  contrary,  &c. 

Mayhem  by  cutting  out  one  of  the  testicles,  under  the  Pennsylvania  sta- 
tute, (m) 

That  negro  T.,  late  of  the  said  county,  yeoman,  on  the  second  day 
of  May,  A.  D.  one  thousand  eight  hundred  and  six,  at  the  county 
aforesaid,  and  within  the  jurisdiction  of  this  court,  contriving  and  in- 
tending one  T.  W.  to  maim  and  disfigure,  with  force  and  arms,  in 
and  upon  the  said  T.  W.,  in  the  peace  of  God  and  the  commonwealth 
then  and  there  being,  feloniously,  voluntarily  and  maliciously  did  make 
an  assault ;  and  the  said  negro  T.,  with  a  certain  knife  of  the  value 
of  ten  cents,  which  he  the  said  negro  T.,  in  his  right  hand  then  and 
there  had  and  held,  on  purpose,  and  of  his  malice  aforethought,  then 
and  there,  unlawfully,  voluntarily,  maliciously  and  feloniously  did 
cut  out,  mutilate  and  destroy  one  of  the  testicles,  to  wit,  the  left  tes- 
ticle of  him  the  said  T.  W.,  with  intention,  him  the  said  T.  W.,  in  so 
doing,  in  manner  aforesaid,  to  maim  and  disfigure  ;  and  so  the  jurors 
aforesaid,  upon  their  oaths,  &c.,  aforesaid,  do  say  that  the  said  negro 
T.,  on  the  said  day  of  in  the  year  aforesaid,  at  the  county 

aforesaid,  with  force  and  arms,  on  purpose,  and  of  his  malice  afore- 
thought, the  offence  aforesaid,  in  manner  and  form  aforesaid,  did  do 
and  commit,  contrary  &c,,  and  against,  &c.(n) 


all  the  other  species  of  mayliem  mentioned  in  the  section  of  the  statute  on  which  this  pre- 
cedent is  drawn.  All  persons  present  aiding  and  abetting  may  be  charged  as  principals. 
If  nut  present,  but  accessaries  before  the  fact,  they  may  be  charged  as  such;"  see  3  Chit. 
787. 

(Z)  See  as  to  the  necessity  of  this  averment,  ante,  p.  44. 

{in)  The  defendant  was  convicted  in  1806,  under  this  indictment,  in  the  Philadelphia 
Quarter  [Sessions. 

(h)  In  an  early  indictment  in  Pennsylvania,  Resp.  v.  Langcake,  1  Yeatcs  415,  the  first 
count  stated,  tiiat  Langcake  contriving  and  intending  Jonathan  Carmalt,  a  citizen  of  Penn- 
sylvania, to  maim  and  disfigure,  with  force  and  arms,  &c.,  on  purpose  and  of  his  malice 
aforetliought,  and  by  li/in<r  in  wait,  on  the  13th  August,  1794,  at,  &c.,  unlawfully  and  felo- 
niously did  make  an  assault  on  the  said  Jonathan  with  a  cart-whip,  of  the  value  of  Is., 
and  the  right  eye  of  the  said  Jonathan  then  and  there  did  strike  and  put  out,  with  an  intent 
in  so  doing  to  maim  and  disfigure  him,  against  the  act  of  assembly,  &,c.,  and  that  Hook 
was  then  and  there  [)rescnt,  aiding  and  abetting  the  fact,  &c.,  against  the  act,  &c. 

The  second  count  vvas  grounded  on  the  latter  part  of  the  (Jlh  sect,  of  the  act  of  22d 
April,  171)4  (p.  601),  and  pursued  the  words  of  the  first  count,  leaving  out  the  words  "and 
by  lying  in  wait,"  and  charging  the  fact  to  have  been  done  "voluntarily  and  maliciously 
and  of  purpose,"  both  against  the  principal  and  accessary. 

The  third  count  stated,  that  Langcake  and  Hook,  contriving  to  maim  and  disfigure 
Jonathan  Carmalt,  in  the  peace  of  God  and  of  the  commonwealth  then  and  there  being, 
tlie  said  Langcake  on  the  13lh  August,  17!M,  at,  iVc,  voluntarily,  wickedly,  maliciously, 
unlawfully  and  feloniously  did  assault  the  said  Jonathan,  and  him  with  a  cart-vvliij),  which 
he  in  his  right  hand  had  and  held,  the  right  eye  of  the  said  Jonathan,  then  and  there  vo- 
lunt.jrily,  <Soc.,  did  strike  and  put  out,  with  intent  in  so  doing  to  maim  and  dislifiurc  him, 
and  that  Hook,  at  the  time  of  the  felony  by  Langcake  done  and  committed  voluntarily, 


MAYHEM.  105 

Against  'principal  in  first  and  second  degree  for  mayhem  in  biting  off 
an  ear,  under  the  statute  of  Alabama. {o) 

That  W.  M.,  on,  &c.,  at,  &c.,  in  and  upon  one  W.  E.  W.,  in  the 

&c.,  was  present  aiding-  and  abetting  the  said  Langcake  in  tlie  felony  -aforesaid,  &c.,  con- 
cluding- as  in  mayhem  at  common  law,  against  the  peace,  &c. 

"  The  first  clause  of  our  act  of  assembly  of  22d  April,  1764,  s.  6,  is  borrowed  from  the 
words  of  the  British  statute  of  22  and  23  Car.  II.  c.  1,  s.  7.  It  pursues  the  same  language, 
except  that  our  act  particularly  enumerates  the  cutting  off  "  the  ear,"  and  mildly  varies 
the  mode  of  punishment.  Under  that  statute,  commonly  called  tlie  Covenlry  Act  it,  has 
been  adjudged  not  necessary  that  either  the  malice  aforethought,  or  lying  in  wait,  should 
be  expressly  proved  to  be  on  purpose  to  maim  or  disfigure;  Leach's  case  193;  Tickner's 
case.  And  also  that  he  who  intends  to  do  this  kind  of  mischief  to  another,  and  hy  deli- 
berately watching  an  opportuniiy,  carries  that  intention  into  execution,  may  be  said  to  lie 
in  wait  on  purpose ;  ib.  194;  ?.Iills'  case. 

"  Under  the  first  clause  of  the  act  of  assembly,  no  intent  to  maim  or  disfigure  in  a  par- 
ticular  manner  is  necessary,  and  therefore  on  the  first  count  in  the  indictment,  if  the 
general  intent  is  established  to  the  satisfaction  of  the  jury,  their  next  material  inquiries 
will  be,  as  to  the  malice  and  lying  in  wait,  whetlier  the  same  has  been  proved,  or  can  fairly 
be  inferred  from  all  the  circumstances  which  have  been  disclosed  in  evidence. 

"The  second  clause  of  the  6th  section  of  the  act  goes  further  than  the  Coventry  Act,  and 
■was  evidently  introduced  to  prevent  the  infamous  practice  of  gouging.  The  words  are 
very  comprehensive,  and  extend  to  pulling  out  or  putting  out  tlie  eye,  while  fighting  or 
otherwise.  But  we  hold  it  necessary,  in  order  to  convict  on  this  clause,  that  a  specific 
intent  to  pull  out  or  put  out  tlic  eye,  must  be  shown  to  the  satisfaction  of  the  jury.  We 
apprehend  that  the  evidence  will  scarcely  warrant  tlie  conviction  of  Langcake  on  the  second 
count;  and  though  Hook  has  behaved  himself  grossly  amiss  during  the  whole  transaction, 
yet  he  cannot  properly  be  convicted  on  either  of  the  two  first  counts  in  the  indictment. 

"Of  the  third  and  fourth  counts,  Langcake  is  admitted  by  his  counsel  to  be  guilty,  and 
perhaps  the  evidence  will  suffice  to  reach  Hook  on  these  two  last  counts. 

Sentence  was  afterwards  pronounced  against  Langcake,  that  he  should  undergo  a  con- 
finement in  the  gaol  and  penitentiary  house  for  three  years,  the  one-twelfth  part  to  be  in  the 
solitary  cells,  to  pay  a  fine  of  S  1000,  whereof  three-fourth  parts  to  be  for  the  use  of  Car- 
malt,  and  give  security  for  his  good  behaviour  for  seven  years,  himself  in  £  500,  and  two 
sufficient  sureties  in  £250  each,  and  pay  costs. 

(o)  State  V.  Absence,  4  Port.  397.  The  court  said  :  "The  indictment  seems  to  be  in  the 
form  pointed  out  by  the  most  usual  and  correct  precedents,  and  contains  only  one  count, 
which  charges  Mosely  with  committing  the  act,  and  Absence  with  being  present,  and  aid- 
ing and  assisting. 

"  It  is  objected,  however,  that  the  statute  having  declared  the  biting  off  of  an  ear  to  be 
mayhem,  it  was  necessary  to  charge  the  individuals  indicted  with  this  legal  conclusion  ; 
Hawk.  vol.  1,  p.  107,  and"2  Hawk.  311,  are  relied  on  to  establish  this  position. 

"It  is  admitted,  if  a  statute  adopt  a  common  law  offence,  without  otherwise  defining  the 
crime,  all  the  comtnon  law  raquirements  should  be  followed  in  the  indictment;  thus  our 
statutes  affix  the  punishment  of  death  to  murder  and  rape,  without  attempting  to  define 
the  crimes.  Here,  no  doubt,  the  terms  '■murdraviV  and  '■  rapuit''  would  be  essential;  but 
when  a  statute  describes  a  particular  act  or  acts  as  a  misdemeanor  or  crime  of  a  parti- 
cular grade,  it  is  not  necessary  in  an  indictment,  after  charging  the  acts,  to  state  the  legal 
conclusion,  that  they  amount  to  the  misdemeanor  or  crime  of  the  grade  declared  by  statute, 
because  such  is  the  conclusion  of  the  law  on  the  facts  alleged.  The  same  reason  is  con- 
ceived applicable  to  the  omission  of  the  word  '  feloniously.'  If  the  statute  had  declared, 
that  all  persons  who  should  be  guilty  of  the  crime  of  mayhem,  should  be  punished  in  a 
particular  manner,  without  attempting  to  further  define  the  offence,  the  question  would 
j)roperly  arise  on  an  indictment  framed  under  such  a  statute,  whether  it  was  necessary  to 
allege  the  mayhem  to  have  been  done  feloniously. 

"  It  is  sufficient  to  decide,  that  the  word  entering  into  no  part  of  the  definition  of  this 
offence,  as  created  by  the  statute,  it  was  properly  omitted  in  the  indictment. 

"  It  is  further  urged,  that  there  is  no  sufficient  allegation  of  time  and  place,  so  far  as  Ab- 
sence  is  noticed  in  the  indictment. 

"  The  court  recognises  the  authority  of  the  rule  requiring  an  averment  of  time  and  place 
to  each  substantive  fact  charged  in  the  indictment;  (Arch.  C.  P.  36).  But  the  indictment, 
it  is  believed,  conforms  to  tliis  rule  with  the  utmost  precision. 

"  It  follows,  as  the  consequence  of  tliese  views,  that  there  was  no  error  in  refusing  to 
arre.-t  the  judgment  in  the  court  below." 


108  OFFENCES  AGAINST  THE  PERSON. 

peace  of  the  said  state  then  and  there  beuig,  did  make  an  assault, 
and  that  the  said  W.  JNI.,  the  right  ear  of  him  the  said  W,  E.  W., 
then  and  there  on  purpose,  and  of  his  mahce  aforethought,  unlaw- 
fully did  bite  off.  And  the  jurors  aforesaid,  upon  their  oaths  afore- 
said, do  further  present,  that  E.  A.,  late  of  the  county  aforesaid,  in  the 
county  aforesaid,  &c.,  with  force  and  arms,  on  the  day  and  year  afore- 
said, unlawfully  and  on  purpose,  and  of  his  malice  aforethought,  was 
present  aiding  and  abetting  and  assisting  the  said  W.  M.,  the  said 
mayhem  to  do  and  commit,  contrary,  &c.,  and  against,  &c. 

Biting  of  an  ear,  under  Rev.  Stat.  JV.  C.  34,  c.  34.(p) 

That  defendant  on,  &c.,  at,  &c.,  unlawfully  and  on  purpose,  did 
bite  off  the  left  ear  of  one  J,  W.,  contrary,  &c. 

Maliciously  breaking  frosecuior^s  arm  ivith  intent  to  maim  him,  under 
the  Alabama  statute.(q) 

That  the  defendant,  with  force  and  arms,  in  and  upon  one  P.  J. 
did  make  an  assault,  and  upon  the  left  arm  of  him  the  said  P.  J., 
with  a  certain  stick,  which  he  the  said  defendant  then  and  there  held 
in  both  his  hands,  did  strike  and  break,  and  did  on  purpose  and  of 
malice  aforethought,  unlawfully  disable  the  said  left  arm  of  him  the 
said  P.  J.,  with  intent  him  the  said  P.  J.  then  and  there  to  maim,  con- 
trary, &c.,  and  against,  &c,(r) 

(p)  State  V.  Girkin,  1  Iredell  121.  Under  this  indictment  it  was  held,  that  an  intent  to 
disfigure  is  prima  facie  to  be  inferred  from  an  act  wiiicli  does  in  fact  disfig-ure,  unless  that 
presumption  be  repelled  by  evidence  on  the  part  of  the  accused  of  a  different  intent,  or  at 
least  of  the  absence  of  the  intent  mentioned  in  the  statute.  It  is  not  necessary,  it  was  said, 
in  an  indictment  under  this  statute,  to  prove  malice  aforethouglit,  or  a  preconceived  inten- 
tion to  commit  the  maim.  To  constitute  a  maim  under  this  statute,  by  biting  off  an  ear, 
it  is  not  necessary  that  the  whole  ear  should  be  bitten  off;  it  is  sufiicient  if  a  part  only  is 
taken  off,  provided  enough  is  taken  off  to  alter  and  impair  the  natural  personal  appear- 
ance, and  to  ordinary  observation  to  render  the  person  less  comely. 

(7)  Sec  State  v.  Bailey,  8  Port.  472,  where  it  was  held,  that  where  the  act  of  eighteen 
hundred  and  seven  (Aik.  Dig.  102),  speaks  of  disabling  a  linrb  or  member,  a  permanent 
injury  is  contemplated,  such  as  at  common  law  would  constitute  mayhem;  a  temporary 
disabling  of  a  finger,  an  arm,  or  an  eye,  is  not  sufficient  to  constitute  the  statutory  offence. 

(r)  A  demurrer  was  filed  to  the  indictment,  which  was  overruled,  and  upon  a  plea  of 
"  not  guilty"  the  defendant  was  convicted,  and  the  sufficiency  of  the  indictment  was  re- 
served by  the  court  below  for  review. 


ABDUCTIOX — KIDNAPPING.  107 


CHAPTER  V. 

ABDUCTION KIDNAPPING. 

Misdemeanor  in  Massachusetts  in  kidnapping  a  slave.{a) 

That  S.  and  T.,  &c,,  at,  &lc.,  on,  &c.,  unlawfully,  fraudulently  and 
wickedly,  without  any  lawful  warrant  or  authority  whatever,  did 
seize,  take,  steal  and  kidnap  one  S.  0..F.,  of  said  W.,  the  minor  child 
and  son  of  J.  F.  F.,  of  said  W.,  a  free  citizen  of  said  commonwealth, 
with  intent  the  said  S,  0.  F.  to  send  and  transport,  and  to  cause  and 
procure  the  said  S.  0.  F.  to  be  sent  and  transported  from  and  out  of 
the  said  commonwealth,  without  the  consent  of  said  S.  0.  F.,  and 
against  his  will,  and  against  the  will  and  without  the  consent  of  said 
J.  F.  F.,  the  said  father  of  said  S.  0.  F.,  to  sell  and  transfer  the  said 
S.  0.  F.  as  a  slave,  against,  &:c.,  and  contrary,  &c. 

Misdemeanor  in  Pennsylvania  in  seducing  away  a  negro  from  the  state, 

6rc.{h) 

That  S.  R.,  late,  Sec,  on,  &c.,  with  force  and  arms,  &c.,  at  the  city 
aforesaid,  and  within  the  jurisdiction  of  this  court,  unlawfully  and  by 
fraud,  did  seduce  a  certain  negro  named  T.,  from  the  said  city  into 
the  State  of  New  Jersey,  with  a  design  and  intention  of  carrying  the 
said  negro  T.  to  be  kept  and  detained  a  slave  for  life,  contrary  to  the 
Ibrm  of  the  act  of  assembly  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity,  &c. 

Second  count.    Causing  such  negro  to  he  seduced,  ^'C. 

And  the  grand  inquest  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  further  present,  that  the  said  S.  R.  afterwards,  to  wit,  on, 
&c.,  at  the  city  aforesaid,  and  within  the  jurisdiction  of  this  court, 
with  force  and  arms,  &c.,  the  said  negro  named  T.,  then  and  there 
unlawfully  and  by  fraud  did  cause  to  be  seduced  from  the  said  city 
to  the  State  of  New  Jersey,  with  a  design  and  intention  of  causing 
the  said  negro  named  T.  to  be  kept  and  detained  as  a  slave  for  life, 
contrary,  &.C.,  and  against,  &c. 

Abduction  under  JVew  York  Rev.  Stat.,  vol.  2,  p.  553,  s.  25. 

That  T.  M.,  late  of  the  First  Ward  of  the  City  of  New  York,  in  the 
County  of  New  York,. aforesaid,  labourer,  on,  &c.,  at  the  ward,  city 


(a)  This  was  the  second  count  of  the  indictment  in  Com.  ».  Turner,  3  Met.  19.  "  The 
second  count  in  this  indictment,"  says  Dewey  J.,  in  givinjr  the  opinion  of  the  court, 
"  being  unquestionably  good  and  sufficient,  the  court  have  not  tliought  it  necessary  to  con- 
sider the  question  raised  as  to  the  sufficiency  of  tlic  first  count." 

(6)  This  indictment  was  found  in  ITJi. 


108  OFFENCES  AGAINST  THE  PERSON. 

and  county  aforesaid,  with  force  and  arms,  in  and  upon  one  J.  T.,  in 
ihe  peace  of  God  and  of  the  said  people  then  and  there  being,  felo- 
niously did  make  an  assault,  and  her  the  said  J,  T.  then  and  there 
feloniously  did  take  against  her  will,  with  the  intent  to  compel  her  by 
force,  menace  and  duress  to  be  defiled,  and  other  wrongs  to  the  said 
J.  T.  then  and  there  did,  to  the  great  damage  of  the  said  J.  T.,  against, 
&.C.,  and  contrary,  &.c. 


CHAPTER  VI. 


ABORTION. 


Production  of  abortion  at  common  law.{a) 

First  count.  By  assault  and  thrusting  an  instrument  in  the  prosecU' 
tor^s  womb,  she  being  big,  quick  and  'pregnant.   . 

That  W.  B.T.,  late  of  the  said  county,  yeoman,  A.  D.  alios  A.  F., 
late  of  the  said  county,  single  woman,  and  —  F.,  late  ofthe  said  county, 

(a)  This  indictment,  containing  besides  two  counts  for  assault  and  battery,  and  two  for 
conspiracy,  was  removed  to  the  Supreme  Court  of  Pennsylvania,  by  allocatur,  in  MaVi 
1845,  and  was  there  met  with  a  special  dem.urrer  as  follows : 

"And  now,  July  8,  1845,  the  above  named  defendants  respectively,  to  wit,  Willpm  B. 
Taylor  and  Ann  Ford  come  into  court,  and  for  a  plea  in  this  behalf  say,  the  said  Ann  Ford 
protesting'  that  she  is  not  and  never  was  known  by  the  name  of  Ann  Domain,  that  she  is 
a  married  woman,  and  that  her  true  and  only  name  is  Ann  Ford  ;  that  they  ouirht  not  and 
cannot  be  called  upon  in  law  to  plead  or  answer  to  the  above  bill  of  indictment,  because 
they  in  fact  say, 

"  The  said  bill  of  indictment  is  informal  and  insulTicicnt,  and  cannot  be  supported  in 
law. 

"  Because  they  state  and  set  forth  the  following  reasons  and  grounds  for  demurrer,  spe- 
cially to  tlic  said  bill  of  indictment,  to  wit: 

"  1st.  The  name  of  Ford  is  connected  with  that  of  said  Taylor  and  Ann  Ford,  without 
other  name,  qualification,  or  addition  to  desifrnate  the  man  intended. 

"2d.  The  said  indictment  does  not  Rufiiciently  aver  the  fact  that  the  said  Susannah  R. 
Schoch,  therein  mentioned,  was  at  the  time  and  ))lacc  therein  stated,  pregnant  and  quick 
with  child,  which  said  child  was  destroyed  and  killed  in  its  mother's  womb,  or  attempted 
by  said  defendants  to  be  so  destroyed  and  killed. 

"3d.  The  said  indictment  contains  two  counts,  to  wit,  the  6th  and  8th,  which  are  with- 
out proper  conclusion,  and  are  therefore  niij^atory. 

"4th.  Counts  are  joined  in  said  indielnicnt  for  producing  the  abortion  ofthe  child 
therein  mentioned,  and  for  attempting  to  produce  it,  and  for  assault  and  battery,  and  for 
attempt  to  commit  said  assault  and  batlety,  and  for  conspiring  to  perpetrate  all  the  said 
offences. 

"5th.  The  said  indictment  includes  but  two  of  the  alleged  parties  to  the  conspiracy 
charged,  to  wit,  the  said  Taylor  and  Ann  Ford,  the  name  of  Ford  fillovving  it,  being  a 
nullity  ;  and  omits  the  name  of  Susannah  R.  Schoch,  the  alleged  third  party,  tiirough 


ABORTIO.V.  10;> 

yeoman,  on,  &.C.,  with  force  and  arms,  &c.,  at  the  county  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  in  and  upou  one  S.  R.  S., 
then  and  there  being  big,  pregnant  and  quick  with  child,  did  make  a 
violent  assault,  and  her  the  said  S.,  then  and  there  did  violently  bruise, 
wound  and  ill-treat,  so  that  her  life  was  thereby  despaired  of;  and  a 

wliom,  and  by  sole  means  of  whose  agencv  in  the  transaction,  the  alleged  conspiracy  was 
entered  into,  arranged  and  carried  into  efFect,  or  attempted  to  be  carried  into  effect  by  the 
other  parties,  the  said  Susannali  R.  Sclioch  being,  if  such  conspiracy  existed,  one  of  the 
parties  concerned,  and  the  only  medium  of  communication  and  combination  between  them, 
and  as  such  an  indispensable  party  to  be  charged  and  embraced  with  the  other  defendants 
in  said  indictment." 

Judgment  was  entered  for  the  commonwealth.  Sergeant  J. delivering  the  following  opinion: 

"  VVe  see  nothing  in  any  of  tlie  points  taken  by  the  defendants  in  demurrer. 

"1.  This  exception  is  only  pleadable  in  abatement,  in  which  Ihe  defendant  must  give  a 
better  name.     It  is  not  cause  of  demurrer. 

"2.  The  indictment  is  in  proper  form,  and  sufficiently  avers  that  she  (the  party  injured) 
was  pregnant  and  quick  with  child,  which  was  destroyed  and  killed,  &-c. 

"  3.  This  exception  is  not  true  in  fact.  The  indictment  contains  but  seven  counts,  with 
the  usual  conclusions. 

"4.  This  exception  is  not  cause  of  demurrer.  If  the  counts  are  improperly  joined,  the 
court  may  be  asked  to  interfere  before  the  trial,  and  put  the  commonwealth  to  its  election. 

"5.  The  name  Ford  alone,  there  being  no  plea  in  abatement,  is  not  a  nullity;  and  as  to 
inserting  Susannah  Schocli  as  a  party,  tliat  rests  with  the  prosecution.  Two  or  more  may 
be  indicted  for  a  conspiracy  with  others  not  parties."    See  Com,  v.  Demain,  6  Pa,  L.  J.  29. 

It  will  be  observed  that  there  is  ambiguity  in  the  language  of  the  court  in  overruling 
the  exception  as  to  quickness.  Tlie  second  count  avers  merely  that  the  prosecutor  is  "  big 
and  pregnant;"  the  court,  on  a  demurrer  pointing  particularly  at  this  feature,  says  that 
it  is  sufficiently  charged  that  the  prosecutor  was  "  big  and  quick"  with  child.  When  it  is 
recollected,  however,  that  the  ease  was  one  oftliose  wliich  under  the  act  of  April  11,  lB4a, 
was  not  certified  by  the  court  to  the  reporter  fur  publication,  the  apparent  incongruity 
may  be  explained  by  treating  Judge  Sergeant's  opinion  as  indicating  the  conclusions  of 
the  court  on  the  points  submitted,  rather  than  their  reasoning  on  the  questions  involved. 
One  thing  is  clear,  and  that  is  that  the  defendants  were  compelled  to  answer  to  the  second 
count,  where  no  averment  of  quickness  was  introduced  ;  and  as  far  as  tliey  were  concerned, 
the  question  was  settled.  Notwithstanding  the  ingenious  commentary  on  this  case  by 
Judge  Lewis,  in  his  late  valuable  and  instructive  treatise  on  criminal  law  (Lewis'  C,  L.  13), 
I  cannot  withhold  my  concurrence  from  the  marginal  abstract  given  by  the  editors  of  the 
Law  Journal  in  reporting  it,  viz.  that  it  is  not  necessary  to  aver  quickness  on  the  part  of 
the  mother,  but  that  it  is  sufficient  to  set  forth  that  she  was  big  and  pregnant.  That  such 
is  the  common  law,  both  on  ground  of  principle  and  analogy,  tiiere  is  strong  reason  to 
maintain.  It  is  true  that  the  Supreme  Court  of  Massachusetts  ruled  differently  in  two 
instances;  in  Com.  v.  Bangs,  9  Mass.  387,  and  in  Com.  v.  Parker,  9  Met.  26.3;  and  that  in 
the  latter  case  the  grave  and  anxious  examination  of  the  question  entitles  the  judgment  of 
the  court  to  the  greatest  weight.  But  the  positions  taken  at  a  former  period  still  appear 
to  me  to  have  a  preponderating  influence.  "There  is  no  doubt  tliat  at  common  law  the 
destruction  of  an  infant  unborn  is  a  high  misdemeanor,  and  at  an  early  period  it  seems  to 
have  been  deemed  murder;  1  Russ.  on  Cr.  671 ;  I  Ves.  86;  3  Coke's  Inst.  50;  I  Hawk.  c. 
13,  s.  16;  1  Hale  434;  1  East  P.  C.  90 ;  3  Chit.  C.  L.  798.  If  the  child  dies  subsequently 
to  birth,  from  wounds  received  in  the  womb,  it  is  clearly  homicide;  R.  v.  Senior,  1  Mood. 
C.  C.346;  3  Inst.50;  (see  Wh.C.  L.225).  It  has  been  said  that  it  is  not  an  indictable  offence 
to  administer  a  drug  to  a  woman  and  thereby  to  procure  an  abortion,  unless  the  mother  is 
quick  with  child ;  Com.  v.  Bangs,  9  Mass.  3f!i7,  though  such  a  distinction,  it  is  submitted, 
is  neither  in  accordance  with  tlie  result  of  medical  experience;  Guy's  Med.  Juris,  tit. 
Abortion;  1  Beck  172;  nor  witli  tlie  principles  of  common  law;  1  Russ.  on  Cr.  671  ; 
1  Ves.  86;  3  Coke's  Inst.  50;  1  Hawk.  c.  13,  s.  16;  Bracton,  1.  3,  c.  21.  The  civil  rights 
of  an  infant  in  ventre  sa  mere,  arc  equally  respected  at  every  period  of  gestation  ;  and  it  is 
clear  that  no  matter  at  how  early  a  stage  he  may  be  appointed  executor,  Bac.  Ab.  tit.  In- 
fmts,  is  capable  of  taking  as  legatee,  2  Vern.  710;  or  under  a  marriage  settlement.  Doe  r. 
Clark,  2  H.  Bl.  399 ;  2  Ves.  jr.  673 ;  Thelluson  v.  Woodford,  4  Ves.  227 ;  may  take  speci- 
fically  under  a  devise,  Fearne  42!! ;  and  may  obtain  an  injunction  to  stay  waste,  Smith  r. 
Duffield,  5  S.  &  R.  3S;  2  Vern.  710;"  Wh.  C.  L.  308.  this  view  is  strengtlicned  by  the 
precedents  of  Mr.  Chitty ;  Chit.  C.  L.  799,  800;  in  which  the  allegation  of  quickness  i;* 
omitted. 

The  notion  that  a  man  is   not  accountable  for  destroying  a  child  before  it  quickens, 
10 


110  OFFENCES  AGAINST  THE  PERSON% 

c<.rt;iin  instrument  made  of  silver  or  other  metal,  in  the  shape  and 
lorm  of  a  hook,  up  and  into  the  womb  and  body  ot  the  said  S.,  then 
and  there  violently,  wickedly  and  inhumanly  did  force  and  thrust, 
M'ith  a  wicked  intent,  to  cause  and  procure  tlie  said  S.  R.  S.  to  mis- 
arose  from  the  Iiypothesis  that  qnickeningf  was  the  commencement  of  vitality  with  it,  before 
wiiich  it  could  not  be  considered  as  existing^.  Tliis  "  absurd  distinction,"  as  it  is  called  by 
JJr.  Guy  (Med.  Jur.  133),  is  now  exploded  in  medicine,  the  fact  being  considered  indis- 
patablf,  that  "quickening"  is  the  incident,  not  the  inception  of  vitality.  This  view  is 
clearly  expounded  by  Dr.  Beck,  in  his  Med.  Jurisp;  vol.  1,  p.  173.  "The  motion  of  the 
fetus,"  he  says,  "when  felt  by  the  mother,  is  called  quickening.  It  is  important  to  un- 
di,istand  tlie  sense  attached  to  tiiis  word  formerly,  and  at  the  present  day.  The  ancient 
opinion,  and  on  which  indeed  the  laws  of  some  countries  have  been  founded  was,  that  the 
fuctus  became  animated  at  this  period — that  it  acquired  a  new  mode  of  existence.  This  is 
aliogetiier  abandoned.  The  tcEtus  is  certainly,  if  we  speak  physiologically,  as  much  a  liv- 
iUij  I)eing  immediately  at'ter  conception,  as  at  any  other  time  before  delivery  ;  and  its  future 
progress  is  but  the  development  and  .increase  of  those  constituent  principles  which  it  then 
received.  The  next  theory'  attached  to  the  term,  and  which  is  yet  to  be  found  in  many 
standard  works,  is,  that  from  the  incrciise  of  the  fcetus,  its  motions,  which  hitherto  had 
been  feeble  and  imperfect,  now  are  of  sufficient  strength  to  communicate  a  sensible  impulse 
to  the  adjacent  parts  of  the  niotiier.  In  this  sense,  then,  quickening  implies  the  first  sen- 
sation which  the  mother  lias  of  the  motion  of  the  child  which  she  had  conceived. 

"A  far  more  rational,  and  undoubtedly  more  correct  opinion,  is  that  which  considers 
quickening  to  be  produced  by  the  impregnated  uterus  starlincr  suddenly  out  of  the  pelvis 
into  the  alidominul  cavity.  Tliis  explains  several  peculiarities  attendant  on  the  phenomenon 
in  question — the  variety  in  the  period  of  its  occurrence — the  faintness  which  usually  ac- 
com|)anies  it,  owing  to  the  pressure  being  removed  from  the  iliac  vessels,  and  the  blood 
suddenly  rushing  to  them ;  and  the  distinctness  of  its  character,  differing,  as  all  mothers 
assert,  tiom  any  subsequent  motions  of  the  fcetus.  Its  occasional  absence  in  some  females 
is  readily  accounted  for,  from  the  ascent  being  gradual  and  unobserved." 

The  true  meaning  of  quickening,  and  the  absurdity  of  the  doctrine  that  it  is  the  incep- 
tion of  life,  is  pointedly  shown  by  Orfila,  in  the  recent  edition  of  his  very  authoritative  trea- 
tise— Traite  de  Medecine  Legale — Paris,.  1848  (vol  i.  p.  2:26): 

"Chez  la  plupart  des  femmes  le  fcetus  exerce  des  mouvemens  que  Ton  a  appel^s  actifs : 
c' est  parliculierement  vers  la  fin  du  quatridme  mois,  lorsque  les  organes  de  la  locomotion 
jouissent  dej&,  d'  une  certaine  energie,  que  ces  mouvemens  sont  scnsiblcs;  ils  devienncnt 
quelquefois  si  forts  par  la  suite,  qu'on  les  apercoit  meme  a  travers  les  vetcmens,  et  que  la 
tbmme  en  est  reveillee  pendant  la  nuit:  1' homme  de  I'art  parvient  snuvent  a  les  provoquer 
en  appliquant  sur  les  parois  du  ventre  la  main  prealablement  trempec  dans  1'  eau  fioide. 
Ce  signe  qui  paraitrait  au  premier  abord  devoir  permettre  d'  aftirmer  que  la  fenmie  est  ou 
n' est  pas  enceinte,  presente  pourtant  beaucoup  d' incertitude;  non  seulement  il  y  a  des 
femmes  qui  n' ont  senti  de  pareils  mouvemens  &,  aucune  epoque  de  la  grossesse,  muis  il  en 
est  beaucou])  d' autres  chez  lesquelles  des  contractions  spasmodiques  de  1' uterus  et  des 
intestins  simulaient  tellemcnt  les  mouvemens  du  foetus  qu'elles  se  disaient  enceintes." 

It  appears,  then,  that  quickening  is  a  mere  circumstance  in  the  physiological  history  of 
the  fojtus,  which  indicates  neither  the  commencement  of  a  new  stage  of  existence,  nor  an 
advance  from  one  stage  to  another — that  it  is  uncertain  in  its  periods,  sometimes  coming 
at  three  months,  sometimes  at  five,  sometimes  not  at  all — and  that  it  is  dependent  so  entirely 
upon  foreign  influences  as  even  to  make  it  a  very  incorrect  index,  and  one  on  wliich  no 
practitioner  can  depend,  of  the  progress  of  pregnancy.  There  is  as  much  vitality  in  a 
physical  point  of  view,  on  one  side  of  quickening  as  on  the  other,  and  in  a  social  and  a 
moral  point  of  view,  the  infant  is  as  much  entitled  to  protection,  and  society  is  as  likely  to 
be  injured  by  its  (kstruetion,  a  week  hefort;  it  quickens  as  a  week  afterwards.  But  if  the 
common  law  in  making  fa'tieide  penal,  had  in  view  the  great  mischiefs  which  would  re- 
»ult  from  even  its  qualified  toleration,  e.  g.  the  removal  of  the  chief  restraint  U|)on  illicit 
inLereourse,  and  the  shock  which  would  be  sustained  thereby  by  the  institution  of  marriage 
arid  its  incidents — we  can  have  no  authorily  now  for  withdrawing  any  epoch  in  gestation 
from  the  operation  of  the  principle.  Certainly  the  restraints  upon  illicit  intercourse  are 
equally  removed — the  inducements  to  marriage  are  equally  diminished — the  delicacy  of 
the  woman  is  as  effectually  destroyed — no  matter  what  may  be  the  period  chosen  for  the 
operation.  Acting  under  these  views,  the  legislatures  of  Massachusetts  and  New  York, 
in  order  to  fill  up  the  supposed  gap,  passi  d  acts  making  ante-quickcning-fii^ticide  indivi- 
dunlly  penal.  Il' licjwever,  as  has  bet;n  argued,  no  such  gap  exists,  it  will  bv  worth  while 
for  the  courts  of  those  slates  which  have  not  legislated  on  the  subject,  to  consider  how  fjir 
an  exjiloded  notion  in  physics  is  to  be  allowed  to  suspend  the  operation  of  one  of  lire  most 
oofiscrvative  doctrines  of" the  common  law. 


ABORTION.  1  1  1 

carry,  abort  and  to  bring  forth  the  said  child,  of  which  she  was  big, 
quick  and  pregnant,  as  aforesaid,  dead,  and  to  kill  and  murder  the 
said  child,  by  reason  and  means  of  which  said  last  mentioned  pre- 
mises, the  said  child  was  killed  and  its  life  destroyed  and  taken  away 
in  its  mother's  womb;  and  she,  the  said  S.  afterwards,  to  wit,  on,  &c., 
miscarried  and  was  aborted  and  delivered  of  the  said  child,  being  a 
female  child,  and  being  at  the  time  of  its  birth  dead,  to  the  great  in- 
jury and  detriment  of  the  said  S.,  to  the  evil  example  of  all  others  in 
like  manner  otl'ending,  and  against,  &c,  {Conclude  as  in  book  1, 
chap.  3). 

Second  count,  averring  'prosecutrix  to  he  "  big  and  pregnant" 

That  the  said  W.  B.  T.,  A.  D.  alias  A.  F.,  and  —  F.,  afterwards, 
to  wit,  on  the  day  and  year  aforesaid,  at  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  in  and  upon  the  said  S.  R.  S., 
then  and  there  being  big  and  pregnant  with  a  certain  other  child,  did 
make  another  violent  assault,  and  a  certain  other  instrument  made  of 
silver  or  other  metal  in  the  shape  and  form  of  a  hook,  up  and  into  the 
womb  and  body  of  the  said  S.  then  and  there  violently,  wickedly  and 
inhumanly  did  force  and  thrust,  with  a  wicked  intent  to  cause  and  pro- 
cure the  said  S.  to  miscarry,  and  to  bring  forth  the  said  child  of  which 
she  was  big  and  pregnant,  as  last  aforesaid,  dead,  by  reason  and  means 
of  which  said  last  mentioned  premises,  she  the  said  S.,  afterwards,  to 
wit,  on,  &c.,  miscarried,  and  was  delivered  of  the  said  child,  being  a 
female  child,  the  said  child  being  dead  at  the  time  of  delivery,  to  the 
great  injury  and  detriment  of  the  said  S.,  to  the  evil  example  of  all 
others  in  like  manner  ofl'ending,  and  against,  &c.  [Conclude  as  in 
book  1,  chap.  3). 

Third  count,  merely  averring  pregnancy  in  same. 

That  the  said  W.  B.  T.,  A.  D.  alias  A.  ¥.,  and  —  F.,  afterwards, 
to  wit,  on  the  day  and  year  aforesaid,  at  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  in  and  upon  the  said  S.  R.  S., 
then  and  there  being  pregnant  with  a  certain  other  child,  did  make 
another  violent  assault,  and  a  certain  other  instrument  made  of 
silver  or  other  metal,  in  the  shape  and  form  of  a  hook,  up  and 
into  the  womb  and  body  of  the  said  S.,  then  and  there  violently, 
wickedly  and  inhumanly  did  force  and  thrust  with  a  wicked 
intent,  to  wit,  to  cause  and  procure  the  said  S.  to  miscarry  and  to 
bring  forth  the  said  child  of  which  she  was  big  and  pregnant,  as  last 
aforesaid,  dead,  to  the  great  injury  and  detriment  of  the  said  S.,  to 
the  evil  example  of  all  others  in  like  manner  offending,  and  against, 
&c.(6)    {Conclude  as  in  book  1,  chap.  3). 

Assault  on  a  woman  with  quick  child,  so  that  the  child  icas  brought  forth 
dead.     {At  common  law).{c) 

That  defendant,  on,  &c.,  at,  &c.,  in  and  upon  M.,  the  wife  of  one 

ih)  By  the  act  of  31st  May,  1781,  Purdon's  Digfcst  531,  it  is  provided,  that  "If  any 
person  or  persons  sliall  counsel,  advise  or  direct  such  woman  to  kill  tlie  cliild  she  goes 
with,  and  after  slic  is  delivered  of  such  child  she  kills  it,  every  such  person  so  advising  or 
directing,  shall  be  deemed  accessary  to  such  murder,  and  shall  have  the  same  punishmitit 
as  the  principal  shall  have."  Of  course  in  case  of  the  child  dving  after  birth,  the  uiis- 
deineanor  mer<res;  and  this  is  so  at  common  law;   W  h.  C.  L.  225. 

(c)  Stark.  C.  P.  4:29. 


112  OFFENCES  AGAINST  THE  PERSON. 

W.  E.,  then  and  there  being  big  with  a  quick  child,  did  make  an 
assault ;  and  her  the  said  M.,  then  and  there  did  beat,  wound  and 
ill-treat,  so  that  her  life  was  greatly  despaired  of,  by  reason  whereof 
she  the  said  M.,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  did  bring  forth 
the  said  child  dead,  and  other  wrongs  to  the  said  M.,  then  and  there 
did,  against,  &c.   {Conclude  as  in  book  1,  chap.  3). 

Against  A.  the  'principal,  for  producivg  an  abortion  by  using  an  instru- 
ment on  the  person  of  a  third  party,  and  B.  an  accessary  before  the 
fact,  under  the  English  statute.{d) 

That  T.  A.,  late  of,  &c.,  on,  &c.,  at,  &c.,  feloniously,  unlawfully 
and  maliciously  did  use  a  certain  instrument,  the  name  of  which  in- 
strument is  to  the  jurors  unknown,  hy  then  and  there  forcing,  thrust- 
ing and  inserting  the  said  instrument  into  the  private  parts  of  H.  L., 
now  known  by  the  name  of  H.  E.,  with  intent  in  so  doing,  then  and 
there  and  thereby  to  procure  the  miscarriage  of  the  said  H,  L.,  now 
known  by  the  name  of  H.  E.,  against,  &c.,  and  against,  &c.  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  T.  J.  F.,  late  of,  &c.,  before  the  committing  of  the  felony  by  the 
said  T.  A.,  as  aforesaid,  to  wit,  on,  &c.,  at,  &c.,  feloniously  did  pro- 
cure, counsel  and  command  the  said  T.  A.,  the  felony  aforesaid,  in 
manner  and  form  aforesaid  to  commit,  against,  &.C.,  and  against,  &.e. 
{Conclude  as  in  book  1,  chap.  3). 

Adjninistering  a  potion  at  common  law  with  intent  to  produce  abortion.{e) 

That  A.  B.,  of  in  the  county  of  labourer,  on,  &c.,  at 

B.  aforesaid,  in  the  county  aforesaid,  did,  unlawfully  and  wickedly, 
administer  to,  and  cause  to  be  administered  to  and  taken  by  one  C. 
D.,  singlewoman,  she  the  said  C.  D.,  being  then  and  there  pregnant 
and  quick  with  child,  divers  quantities,  to  wit,  four  ounces  of  a  cer- 
tain noxious,  pernicious  and  destructive  substance  called  savin  ;  with 

(d)  R.  V.  Ashmall,  9  C.  &  P.  23G,  At  the  trial  the  defendant  Ashmall  was  called,  but 
did  not  appear,  but  Fay,  vviio  had  been  on  bail,  appeared.  Godson,  for  the  defendant  Fay 
— "I  submit  that  my  client  is  not  compellable  to  plead  to  this  indictment.  He  is  indicted 
as  an  accessary,  and  as  an  accessary  only.  Formerly  an  accessary  before  the  fact  could, 
in  no  case,  be  brought  to  trial  without  his  principal,  except  after  the  conviction  of  his 
principal,  or  by  his  own  consent.  But  now,  by  the  stat.  7  Geo.  IV.  c.  G4,  s.  9,  accessaries 
before  the  fact  may  be  tried  in  either  one  of  three  modes: — 1st,  with  the  principal,  2d, 
after  the  conviction  of  the  princi[)al  felon,  or  3d,  for  a  substantive  felony.  'I'his  indictment 
is  not  for  a  substantive  felony,  because  every  thin^r  cliarjred  against  Mi.  Fay  is  charged  as 
having  been  done  accessarily  to  Ashmall;  and  what  shows  decisively  that  Mr.  Fay  is 
charged  as  an  accessary  only,  is,  that  if  Mr.  Ashmall  was  acquitted  on  this  indictment. 
Fay  must  be  acquitted  also  as  a  legal  consequence."  Carrington  on  the  same  side :  "At 
the  time  of  the  passing  of  the  act,  7  Geo.  IV.  c.  61,  I  had  occasion  to  compare  it  with  all 
the  previous  enactments  on  the  subject,  and  I  believe  I  am  correct  in  stating  that  the 
only  alteration  in  the  law  th(m  niad(^,  as  to  the  trial  of  accessaries  without  and  before  the 
conviction  of  the  principal,  was  by  the  provisions  relating  to  the  accessary  being  indicted 
for  a  substantive  felony.  I  submit,  also,  that  an  indictment  for  a  substantive  felony  must 
be  so  framed  as  not  to  de|)r'nd  on  the  conviction  or  acquittal  of  any  person,  except  the 
party  who  is  charged  with  the  substantive  felony;  indeed,  the  ordinary  counts  for  the  sub- 
stantive felony  of  being  accessary,  do  not  even  name  the  principal,  but  merely  state  him 
to  be  "a  certain  evil  disposed  person."  Gurncy,  B.,  (after  conferring  with  Patleson,  .1  ), 
my  learned  brother  Pattcson  concurs  with  mc  in  opinion  that  Mr.  Fay  is  not  compcllalilc 
to  plead  to  this  indicluuMit  at  present.  There  might  have  been  an  indictment  against 
him  for  a  substantive  felony,  hut  this  is  not  so. 

(e)  3  Chit.  C.  L.  797,  bUll ;  Davis'  Prec.  33. 


ABORTION.  113 

intent  thereby  to  cause  and  procure  the  miscarriage  of  the  said  C.  D., 
and  the  premature  birth  of  the  said  child,  of  which  the  said  C.  D. 
was  then  and  there  pregnant  and  quick  ;  by  the  means  whereof,  the 
abortion,  miscarriage  and  premature  birtfi  of  the  said  child  was 
caused  and  produced.  And  she  the  said  C.  D.,  afterwards,  to  wit, 
on,  &c.,  next  following,  at  B.  aforesaid,  in  the  county  aforesaid,  by 
means  of  the  noxious,  pernicious  and  destructive  substance  aforesaid, 
so  as  aforesaid  administered  by  the  said  A.  B.,  and  taken  by  the  said 
C.  D.,  was  prematurely  delivered  of  the  said  child,  against,  &.c.  [Con- 
clude as  in  book  1,  chap.  3). 

Producing  abortion  in  New  York,  2  R.  S.  550-51,  s.  9,  2d  ed. 

That,  &c.,  on,  &c.,  in  and  upon  one  S.  S.,  &c.,  she  the  said  S.  S., 
then  and  there,  &:c,,  being  pregnant  with  a  quick  child,  feloniously 
and  wilfully  did  make  an  assault;  and  that  the  said  defendant,  on, 
&.C.,  feloniously  and  wilfully  did  use  and  employ  on  and  upon  the 
body  and  womb  of  the  said  S.  S.,  the  mother  of  the  said  quick  child, 
certain  instrumeiUs,  to  wit,  one  piece  of  wire,  &c.,  with  the  intent 
thereby  then  and  there  feloniously  and  wilfully  to  destroy  the  said 
quick  child,  the  same  not  being  necessary  to  preserve  the  life  of  the 
said  S.  S.,  the  mother  of  the  said  child,  and  not  having  been  advised 
by  two  physicians  to  be  necessary  for  such  purpose;  by  means 
whereof  the  death  of  the  said  quick  child  was  thereby  produced, 
contrary,  &c.,  and  against,  &c.(/}    [Conclude  as  in  book  1,  chap.  3). 

Administering  medicine  under  the  Indiana  statute  with  intent  to  pro- 
duce abortion. [g) 

That  A.  B.,  on,  &c,,  at,  &c.,  did  feloniously,  wilfully  and  unlaw- 
fully admniister  to  one  L.  H.,  then  and  there  being  pregnant  with  a 
child,  a  large  quantity  of  medicine  with  intent  thereby  feloniously, 
&:c.,  to  procure  the  miscarriage  of  said  L.  H.,  the  administering  said 
medicine  to  said  L.  H.,  not  then  and  there  being  necessary  to  pre- 
serve the  life  of  said  L.  H.,  contrary  to  the  statute,  &c.  [Conclude  as 
in  book  1,  chap.  3). 

(/)  On  this  indictment — to  which  there  was  a  second  count  averring-  the  operation  to 
have  been  with  an  instrument  unknown — the  court  on  trial  held  that  if  the  jury  doubted 
as  to  the  killing  of  the  quick  ciiild,  which  is  manslaughter  by  the  Rev.  Statutes,  they 
could  convict  of  killing  the  cliild  not  quick,  which  is  but  a  misdemeanor.  The  jury  hav- 
ing found  the  defendant  guilty  of  the  misdemeanor,  the  directions  given  below  were  sus- 
1, lined  by  the  Supreme  Court;  People  v.  Jackson,  3  Hill  93. 

(g)  State  V.  Vawtcr,  7  Blackf.  592.  The  objection  made  to  the  indictment  was,  that  it 
neither  names  the  medicine  administered,  nor  states  that  it  was  noxious. 

The  language  of  the  statute  is,  that  "  every  person  who  shall  wilfully  administer  to  any 
pregnant  woman  any  medicine,  drug,  substance  or  thing  whatever,  or  employ  any  instru- 
ment, &c.,  with  intent  thereby  to  procure  the  miscarriage  of  any  woman,"  &c.  "This 
statute,"  said  the  court,  "  so  far  as  the  present  case  is  concerned,  is  similar  to  the  second 
section  of  the  statute  of  43  Geo.  III.;  and  it  has  been  held  that  on  tlie  trial  of  an  indictment 
nn  that  section,  the  name  of  the  medicine  administered  need  not  be  proved  ;  that  the  ques- 
tion is,  whether  tlie  prisoner  administered  any  matter  or  thing  to  the  woman  witli  intent 
to  procure  abortion;"  Rex  v.  Phillips,  3  Campb.  73.  I  think  the  name  of  the  medicine 
need  not  be  proved;  there  seems  to  be  no  good  reason  for  naming  it  in  the  indictment.  It 
is  also  decided  in  the  case  first  referred  to,  tliat  the  indictment  need  not  describe  tlie  medi- 
cine as  noxious. 

10* 


114  OFFENCES  AGAIXST  THE  PERSO\. 


CHAPTER  VII. 

ASSAULTS. 

Indictment  for  a  common  assault. 

That  A.  B.,  late  of,  &c.,  on,  &c.,  with  force  and  arms,(«)  in  and 
upon  one  C.  D.,  in  tlie  peace  of  God  and  of  tlie  said  state  tiien  and 
there  being,(6)  did  make  an  assanlt ;  and  him  the  said  C.  D.,  did  then 
and  there  beat,(c)  wound  and  ill-treat,  and  other  wrongs  to  the  said 
C.  D.,  then  and  there  did,  against  the  peace,  &.c.(f/)  [Conclude  as 
in  book  1,  chap.  3). 

(fl)  As  to  necessity  of  these  words,  see  ante,  p.  9. 

(6)  See  ante,  p.  10. 

(c)  The  practice  is  to  alleffe  a  battery,  though  if  no  battery  be  shown,  the  defendant 
may  be  convicted  of  a  common  assault. 

(J)  [Of  common  assaults).  An  assault  is  an  attempt  or  offer  to  do  an  injury  to  the  per- 
son of  another,  under  circumstances  denotinor  a  present  intention,  coupled  with  a  present 
ability  to  do  such  injury,  whether  that  injury  be  actually  done  or  not;  Selw.  N.  P.  10th 
cd.  25.  Sec  Stephens  v.  Myers,  4  C.  &  P.  349,  Tindal  C.  J.;  and  Hawk.  b.  2,  c.  62,  s. 
1  ;  Wh.  C.  L.  311.  Thus,  lifting  up  a  stick  or  fist  in  a  threatening  attitude,  so  near  to 
the  party  threatened  that  a  blow  might  take  effect,  although  the  fist  or  the  stick  is  not 
brought  in  actual  contact  with  his  person  ;  presenting  a  loaded  fire-arm  at  a  person  within 
the  distance  to  which  it  will  carry,  though  without  firing  it,  or  even  unloaded,  if  having 
tlic  appearance  to  him  of  being  loaded,  and  so  near  that  if  it  was  loaded  and  went  off,  it 
might  produce  injury;  diet.  Parke  B.,  Reg.  v.  St.  George,  9  C.  &,  P.  493;  quere,  see  Selw. 
N.  P.  lUth  ed.  25;  sec  Stephens  v.  Myers,  4  C.  &  P.  349,  Tindal  C.  J.;  and  Hawk.  b.  2, 
c.  62,  s.  1  ;  Wh.  C.  L.  31 1,  Striking  at  or  throwing  any  substance  at  another  with  intent 
to  strike,  though  the  attempt  fail,  are  assaults  in  law;  and  it  is  said  that  though  the  per- 
SLCUtor  was  beyond  the  defendant's  reach,  yet  if  the  distance  was  such  to  induce  a  man 
of  ordinary  firmness,  under  tlie  accompanying  circumstances,  to  believe  that  he  will  at 
once  receive  a  blow,  unless  he  strikes  back  in  self-defence,  it  is  an  assault;  State  v.  Davis, 
1  Iredell  125.  Meie  words,  however,  whatever  violence  they  may  threaten,  never  amount 
to  an  assault;  Hawk.  b.  2,  c.  C2,  .s.  1.  Tiie  fact  of  firing  a  gun  into  a  room  of  A.'s  house 
with  intent  to  shoot  A.,  the  prisoner  sujiiHjsing  him  to  be  in  the  room,  will  not  support  a 
cliarge  of  shooting  at  A.,  if  he  is  shown  not  to  be  in  the  room,  or  within  reach  of  the 
shot;  Reg.  v.  Lovel,  2  M.  &-  R.  39.  (Gurncy  B.).  So  where  the  defendant  at  the  time 
f|uqlifics  the  action  by  saying  "  were  you  not  so  old  I  would  knock  you  down,"  or  words 
to  that  effect,  the  purpose  thus  restricted  docs  not  amount  to  an  assault  ;  State  v.  Crow,  1 
Iredell  375;  Com.  v.  Hyrc,  I  S.  &,  R.  347;  State  v.  Davis,  1  Iredell  125.  Such  assaults 
do  not  include  a  battery,  which  consists  in  sonic  actual  and  unwarranted  force  applied  to 
liic.  person  ;  but  every  battery,  however  small,  includes  an  assault ;  e.  g.  spitting  in  a  man's 
face,  cutlinir  off  his  hair  in  derision;  Fordc  v.  Skinner,  4  C.  &  P.  239;  sic  C.  &,  K.  160; 
forcibly  Htri|)ping  him  of  his  clothes ;  see  Snnbolf  «.  Aiford,  3  M.  &  W.  248;  or  even 
touching  him,  if  done  with  the  purpose  to  insult  him;  King  ct  ux.  ?).  Jebbert,  Skinner 
3fj7,  cited  1  Saund.  14.  And  the  assault  and  battery  will  be  equally  conmiitted,  whether 
by  iiclually  employing  the  hand,  or  by  any  other  means,  as  giving  cantharides,  or  placing 
an  inliint  in  a  bag,  hanging  tiie  bag  on  palings  and  leaving  it  there;  Reg.  v.  March,  C.  «fc 
K.  496.  S(-ltiiig  a  doL"-  on  another,  or  driving  a  cart  wilfully  against  the  carriage  of 
unollier,  by  wiiich  bodily  injury  is  done  to  those  within  it;  for  every  party  in  an  assault, 
whflhei  acting  by  liim.self  or  liirough  another,  is  liable  as  principal;  State  v.  I<ymburn,  1 
Urevnrd  3!)7  ;  Wh.  C.  L.  33,  313.  So  if  a  drunken  person  be  wilfully  pushed  against  the 
fomplaintirit;  Short  «.  I.ovejoy,  Bull.  N.  I'.  16;  but  the  rule  does  not  bear  where  the  act  is 
merely  the  result  uf  aeeideiit,  or  nn  injury  in  an  amicable  contest  (if  lawful),  as  in  wrest- 
li^rig  ;  ('om.  Dig.  Pleader  (3  M.  18) ;  see  Bull.  N.  P.  16;  Bac.  Abr.  tit.  Assault  and  liatlrry, 
JJ.;  1  liuhl  P.  C.  26«.    All  struggles  in  anger,  however,  whether  by  wrti-tling,  pushing,  &,e., 


ASSAULTS.  115 

Assault  without  battery. 

That  A.  B.,  of  in  the  county  of  labourer,  on,  Sec,  wiih 

force  and  arms,  at  in  the  county  aforesaid,  in  and  upon  one  C. 

D.  (in  the  peace  of  the  said  commonwealth  then  and  there  being), 
with  a  certain  offensive  weapon  called  a  cane,  did  make  an  assault, 
and  other  wrongs  to  the  said  C.  D.,then  and  there  did  and  committed, 
to  the  great  injury  of  him  the  said  C.  D.,  &c.  {Conclude  as  in  book 
1,  chap.  3). 

Assault  and  battery.     Massachusetts  form. 

That  A.  B.,  of  in  the  county  of  labourer,  on,  &:c.,  with 

force  and  arms,  at  in  the  county  aforesaid,  in  and  upon  the  body 

of  one  C.  D.,  (in  the  peace  of  the  said  commonwealth  then  and  there 

are  unlawful,  so  that  death  occasioned  thereby,  is  manslaughter  at  least;  Reg.  v.  Canniff, 
9  C.  &  P.  351);  and  this  same  principle  applies  vviiere  one  party  gives  another  a  whipping 
<it  the  request  of  the  latter,  who  was  under  the  impression  that  he  would  thereby  be  re- 
lieved from  a  prosecution  for  felony  ;  State  v.  Beck,  I  Hill  363. 

An  assault  may  also  be  committed  by  exposing  a  servant  of  tender  years  to  the  in- 
clemency of  the  weather;  R.  v.  Ridley,  2  Campb.  650,  653;  see  s.  10  of  c.  6  Dickin- 
son's Q.  S.,  by  taking  indecent  liberties  with  a  female  pupil  of  thirteen  years  of  age, 
without  her  consent,  though  she  may  not  offer  actual  resistance ;  R.  v.  Nicholl,  R.  &  R. 
130;  and  even  by  a  medical  practitioner  who  wantonly  stri[)s  a  female,  under  false  pre- 
tence that  he  cannot  otherwise  judge  of  her  illness,  even  though  she,  under  such  impres- 
sion, acquiesces;  R.  v.  Rcsinski,  1  Mood.  C.  C.  19  ;  but  not  by  "attempting  to  assault  a 
girl  by  inducing  and  soliciting  her  to  place  herself  in  an  indecent  attitude,"  the  defendant 
doing  the  like ;  R.  v.  Butler,  6  C.  &,  P.  368.  Being  present  at  a  prize  fi^lit  in  order  to  see 
it,  is  indictable  as  an  assault ;  R.  v.  Perkins,  4  C.  &.  P.  537 ;  see  R.  v.  Billingham,  2  C.  &, 
P.  234. 

{Cases  xchere  even  hattery  is  no  offence).  There  are  many  cases,  however,  in  which  a 
Ijattery  is  no  offence.  Tims,  whenever  a  man  is  first  assaulted,  he  may  lawfully  strike 
with  a  violence  not  exceeding  that  which  appears  necessary  for  the  defence  of  his  person; 
though  he  cannot  justify  a  battery  manifestly  excessive  by  setting  up  the  first  assault 
from  his  adversary;  Bull.  N.  P.  18;  see  Fish  v.  Scott,  Pcake  C.  N.  P.  135.  {Quere,  if  an 
assault  committed  by  A.,  after  being  first  assaulted  by  B.,  is  not  an  indictable  offence  by 
A.;  see  Hinton  v.  Heather;  Dickinson's  Q.  S.  316).  So  he  may  remove  a  trespasser  from 
liis  land,  after  requesting  him  to  de[)art ;  and  even  without  such  request,  where  the  party 
is  proceeding  to  acts  of  destruction  and  violence,  or  is  forcibly  removing  goods;  Green  v, 
Goddard,  2  Salk.  641  ;  Com.  t-.  Keimard,  8  Pick.  133;  though  the  application  of  any  un- 
necessary amount  of  force  is  indictable ;  State  v.  Lazarus,  1  Const.  S.  C,  R.  34.  The 
use  of  necessary  force  in  extending  legal  process  on  the  person,  and  for  frustratint"  an 
attempt  to  escape,  may  also,  at  all  times,  be  justified;  but  the  force  must  be  necessary 
and  not  wanton ;  2  Roll.  Abr.  546,  A.  And  there  are  relationships  which  justify  a  battery 
in  defence  of  another;  thus,  a  husband  may  justify  a  battery  in  defence  of  a  wife;  a  wite 
in  defence  of  her  husband;  a  parent  in  defence  of  his  child;  a  child  in  defence  of  his  pa- 
rent; a  master  in  defence  of  his  servant;  and  a  servant  in  defence  of  his  master;  Hawk. 
I).  1,  c.  60,  s.  23.  But  it  has  been  said,  that  a  servant  cannot  justify  beating  another  in 
defence  of  his  master's  son,  though  he  was  commanded  to  do  so  by  his  master,  because 
he  is  not  "i  servant  to  the  son  ;  and  that  a  tenant  may  not  beat  another  in  defence  of  his 
landlord ;  Hawk.  b.  1,  c.  60,  s.  24. 

A  battery  m;iy  also  be  justified  when  done  in  the  way  of  domestic  correction  by  a  party 
having  authority  to  employ  it;  as  if  a  father  correct  his  infant  son;  a  school-master  his 
scholar;  or  a  master  his  apprentice;  State  v.  Pondergrass,  2  Dev.  &,  Bat.  407;  provided 
the  punishment  be  moderate,  and  the  instrument  of  correction  proper;  .lohnson  v.  State,  2 
Humph.  283:  Hawk.  b.  1,  c.  60,  s.  24.  And  it  has  been  holdcn,  that  an  officer  of  the 
army  may  juslity  even  a  wounding,  if  done  for  disobedience  of  orders;  and  that  a  sen- 
tence of  a  council  of  war  in  his  favour,  on  the  petition  of  the  soldier  wounded,  will  con- 
clusively entitle  him  to  an  acquittal;  Lane  v.  Hegberg,  Bull.  N.  P.  IJ).  Semble :  an  im- 
priscinment  will  not  necessnrily  amount  to  battery.  See  Wilson  v.  Lainsoa,  3  New.  C. 
3J7  ;  Briggs  v.  Bowgin,  1  New  R.  355. 


116  OFFEIVCES  AGAINST  THE  PERSON. 

being),  an  assault  did  make,  and  him  the  said  C.  D.,  did  then  and 
there  beat,  abuse,  wound  and  ill-treat,  and  other  wrongs,  then  and 
there  did  and  committed,  to  the  great  damage  of  the  said  C.  D.,  and 
against  the  peace  and  dignity  of  the  commonwealth  aforesaid. 

Information  in  Connecticut  for  assault  and  battery  and  breach  of 'peace, 
with  commencement  and  conclusion. 

State  of  Connecticut,  New  Haven  County,  ss.     New  Haven, 
day  of  184 

To  justice  of  the  peace  for  said  county,  residing  in  said  town, 

comes  a  grand  juror  for  said  town,  and  on  his  oath  of  office, 

information  makes,  that,  at  said  New  Haven,  on  the  day  of 

184  with  force  and  arms,  in  and  upon  in  the  peace 

then  and  their  being,  did  make  an  assault,  and  the  said 

then  and  there  did  beat,  bruise,  wound  and  ill-treat;  and  other 
wrongs  and  injuries  then  and  there  did,  to  the  great  damage  of  the 
said  and  against  the  peace.     And  the  grand  juror  further  in- 

forms, that  the  said  with  force  and  arms,  on  the  day  and  year, 

last  aforesaid,  at  New  Haven  aforesaid,  by  tumultuous  and  offensive 
carriage  towards,  and  by  threatening,  traducing,  challenging,  quar- 
reling, assaulting,  beating  and  striking  in  the  peace  then  and 
there  being,  did  greatly  disturb  the  public  peace,  and  other  wrongs 
and  injuries,  then  and  there  committed,  against  the  peace,  of  evil 
example,  and  contrary  to  the  statutes  in  such  cases  made  and  pro- 
vided. And  the  grand  juror  aforesaid  further  complains,  that  {set- 
ting forth  further  breach  of  peace,  if  any,  Sf-c.)  Wherefore  the  grand 
juror  aforesaid  prays  process,  and  that  the  said  may  be  arrested 
and  held  to  answer  the  complaint,  and  be  dealt  with  according  to  law. 
Dated  at  New  Haven  the  day  and  year  first  aforesaid. 

Grand  Juror. 

Assault  and  battery  in  JVew  York,  with  commencement  and  conclusion. 

City  and  County  of  New  York,  ss.  The  jurors  of  the  people  of  the 
State  of  New  York,  in  and  for  the  body  of  the  City  and  County  of 
New  York,  upon  their  oath  present, 

That  A.  B.,  late  of  the  First  Ward  of  the  City  of  New  York,  in  the- 
County  of  New  York  aforesaid,  &c.,on  &:c.,at  the  ward,  city  and  county 
aforesaid,  in  and  upon  the  body  of  C.  D.,  in  the  peace  of  God  and  of 
the  said  people,  then  and  there  being,  with  force  and  arms  did  make 
an  assault;  and  him  the  said  C.  D.,  did  then  and  there  beat,  wound 
and  ill-treat,  and  other  wrongs  and  injuries  to  the  said  C.  D.,  then  and 
there  did,  to  tlie  great  damage  of  the  said  C.  D.,  to  the  evil  example 
f»f  all  others  in  like  case  ollbnding,  and  against  the  peace  of  the  people 
of  the  State  of  New  York,  and  their  dignity. 

Assault  and  huUrry  in  JVew  Jersey,  with  commencement  and  conclusion. 

County,  to  wit:     The  grand  inquest  for  the  State  of  New 

Jersey,  and  for  the  body  of  the  county  of  upon  their         present, 

Tljut   A.  Ji.,  late  o[  the    lovvnslii[)  of  in   the   county   of 


ASSAULTS.  117 

on,  &c.,  with  force  and  arms  at  the  township  aforesaid,  in 
the  county  aforesaid,  and  within  the  jurisdiction  of  this  court,  in  and 
upon  one  C.  D.,  in  the  peace  of  God  and  of  this  state,  then  and  there 
being,  an  assault  did  make,  and  him  the  said  C.  D.,  then  and  there 
did  beat,  wound  and  ill-treat,  and  other  wrongs  to  the  said  C.  I).,  then 
and  there  did  to  the  great  damage  of  the  said  C.  D.,  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and  against  the 
peace  of  this  state,  the  government  and  dignity  of  the  same. 

Assault  and  battery  in  Pennsyhmnia,  with  commencetnent  and  conclusion. 

In  the  Court  of  Quarter  Sessions  of  the  Peace  for  the  CUy  and 
County  of  Philadelphia,  sessions,  184 

City  and  County  of  Philadelphia,  ss. 

The  grand  inquest  of  the  Commonwealth  of  Pennsylvania,  inquir- 
ing for  the  City  and  County  of  Philadelphia,  upon  their  respective 
oaths  and  affirmations,  do  present,  that  A.  B.,  late  of  said  county, 
&c.,  at  the  county  aforesaid,  and  within  the  jurisdiction  of  this  court, 
with  force  and  arms,  in  and  upon  one  C.  D.,  in  the  peace  of  the  said 
commonwealth,  then  and  there  being,  did  make  an  assault,  and  him 
the  said  C.  D.,  did  beat,  wound  and  ill-treat,  and  other  wrongs  to  him 
the  said  C.  D.,  then  and  there  did,  to  the  great  damage  of  the  said  C. 
D.,  and  against  the  peace-  and  dignity  of  the  Commonwealth  of  Penn- 
sylvania. 

Assault  and  encouraging  a  dog  to  hite.(e) 

That  A.  B.,  of  in  the  county  aforesaid,  labourer,  on,  &c., 

now  last  past,  at  B.,  aforesaid,  in  the  county  aforesaid,  in  and  upon 
one  C.  D.,  an  assault  did  make,  and  him  the  said  C,  D.,  did  then  and 
there  beat,  wound  and  abuse,  and  that  he  the  said  A.  B.,  did  then 
and  there  unlawfully  incite,  provoke  and  encourage  a  certain  dog, 
belonging  to  him  the  said  A.  B.,  him  the  said  C.  D.,  then  and  there  to 
beset  and  bite;  by  means  whereof  the  same  dog  did  then  and  there 
grievously  bite  the  right  leg  of  him  the  said  C.  D.,  whereby  the  said 
leg  of  him  the  said  C.  D.,  was  grievously  hurt  and  wounded,  and  his 
life  greatly  endangered,  and  other  wrongs  to  the  said  C.  D.,  then  and 
there  did,  to  tlie  great  damage  of  the  said  C.  D.,  against,  &c. 

Assault  and  tearing  prosecutor^s  hair.(f) 

That  A.  B.,  of  in  the  county  aforesaid,  labourer,  on,  &.c., 

with  force  and  arms,  at  in  the  county  aforesaid,  in  and  upon 

the  body  of  one  C.  D.  (in  the  peace  of  the  said  commonwealth  then 
and  there  being),  did  make  an  assault,  and  her  the  said  G.  D.,  did 
tlien  and  there  beat,  wound  and  abuse;  and  that  he  the  said  A.  B., 
did  then  and  there  unlawfully,  violently,  and  cruelly  seize  and  lay 
JKild  of  the  said  C.  D.,  by  the  hair  of  her  liead;  and  did  then  and  there 
with  great  force,  wrath  and  violence,  \)n\\  and  drag  the  said  C.  D.,  by 

(e)  3  riiit.  C.  [..  823;  Cro.  C.  C.  14.3;  Stark.  C.  P.  3S9;  Ddvis'  Prec.  5S. 
(/j   Ddvis'  Prcc.  Jli. 


118  OFFENCES  AGAINST  THE  PERSON. 

the  same ;  by  means  whereof  he  the  said  A.  B.,  did  then  and  there 
unlawfully,  cruelly  and  brutally  pull  and  tear  the  hair  of  the  head  of 
her  the  said  C.  D.,  off  by  the  roots;  and  the  head  of  her  the  said  C. 
D.,  was  thereby  grievously  wounded  and  hurt,  and  the  said  C.  D. 
thereby  put  in  great  pain  and  torture;  and  other  wrongs  then  and 
there  did  and  committed,  to  the  great  damage  of  her  the  said  C.  D., 
against,  &c.  [Conclude  as  in  book  \,  chap.  3). 

Assaidthg  the  driver  of  a  chaise,  and  overturning  the  chaise  with  the 
wheel  of  a  cart.{g) 

That  A.  B.,  of  in  the  county  of  labourer,  on,  &c,,  with 

force  and  arms,  at  B.,  in  the  county  aforesaid,  in  and  upon  one  C.  D,, 
did  make  an  assault ;  he  the  said  C.  D.,  being  then  and  there  in  a 
certain  chaise  drawn  by  one  horse,  and  in  the  public  street  and  com- 
mon highway  there;  and  that  he  the  said  A.  B.,  then  and  there 
driving  a  horse  drawing  a  cart,  did,  in  the  highway  aforesaid,  unlaw- 
fully, violently,  wantonly  and  maliciously  drive  said  horse,  so  as 
aforesaid  drawing  said  cart,  to  and  against  the  chaise  aforesaid;  and 
that  by  such  driving,  did  then  and  there  in  the  highway  aforesaid, 
unlawfully,  wantonly  and  maliciously  force  said  cart  against  the  said 
chaise,  and  thereby  overturn,  with  one  of  the  wheels  of  said  cart,  the 
said  chaise  in  which  the  said  C.  D.,  then  was  as  aforesaid;  by  means 
whereof,  he  the  said  C.  D.,  was  then  and  there  grievously  hurt, 
bruised  and  wounded;  and  other  wrongs  then  and  there  did  and 
committed,  to  the  great  damage  of  him  the  said  C.  D.,  against,  &.c. 
(^Conclude  as  in  book  1,  chap.  3). 

Jlssaidt  and  beating  out  an  eye.{h) 

That  A.  B,,  of  in  the  county  of  widow  (being  a  per- 

son of  depraved  and  malicious  disposition),  on,  &c.,  with  force  and 
arms,  at  aforesaid,  in  the  county  aforesaid,  in  and  upon  one  C. 

D.,  violently  did  make  an  assault,  and  her  the  said  C.  D.,  did  then  and 
there  beat,  wound  and  ill-treat,  and  that  she  the  said  A.  B.,  with  her 
right  hand,  the  said  C.  D.,  in  and  upon  the  left  eye  of  her  the  said  C. 
D.,  then  and  there  unlawfully,  violently  and  maliciously  did  strike; 
by  means  whereof  the  said  C.  D.,  then  and  there,  the  use,  sight  and 
benefit  of  her  said  left  eye  entirely  lost  and  was  deprived  of;  and  also 
by  means  of  the  premises,  she,  the  said  C.  D.,  became  weak  and  sick, 
and  remained  so  weak  and  sick,  from  thence,  until  the  day  of  taking 
this  inquisition,  and  other  wrongs  then  and  there  did  and  committed, 
to  the  great  damage  of  the  said  C.  D.,  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

Assault  and  riding  over  a  person  with  a  hurse.{i) 

That  A.  B.,  of  in  the  county  of  labourer,  on,  &c.,  at  B.^ 

aforesaid,  in  the  county  aforesaid,  in  and  upon  the  body  of  one  C.  D., 

(ff)  I'>.  r>l.  (/j)  3  Chit.  C.  L.  822;  Davis'  Prcc.  55. 

(0  3  Cl.il.  C.  L.  823;  Davis'  Tree.  58 


I  ASSAULTS.  119 

an  assault  did  make,  and  him  the  said  C.  D.,did  then  and  there  beat, 
wontid  and  abuse;  and  that  the  said  A.  B.,  did  then  and  there,  un- 
lawfully, maliciously  and  with  great  force  and  violence,  ride  and 
drive  a  certain  horse,  then  and  there  under  the  guidance  and  com- 
mand of  him  the  said  A.  B.,  against,  upon  and  over  the  body  of  the 
said  C.  D.,  whereby  the  said  C.  D.,  was  then  and  there  grievously- 
wounded  and  bruised,  and  his  life  thereby  greatly  endangered;  and 
other  wrongs  then  and  there  did  and  committed,  to  the  great  damage 
of  him  the  said  C.  D.,  against,  &c.    [Conclude  as  in  book  1,  chap.  3). 

\For  assaults  on  a  pregnant  woman,  see  ante,  '^Abortion.  '\ 

Assault  by  administering  cantharides  to  prosecutor. {j) 

That  defendant  on,  &c.,  at  &c.,  in  and  upon  one  E.  J.,  did  make  an 
assault,  and  then  and  there  did  unlawfully  and  maliciously  adminis- 
ter and  cause  to  be  administered  to  and  taken  by  the  said  E.  J.,  a 
large  quantity,  that  is  to  say,  two  scruples  of  cantharides,  the  same 
being  then  and  there  a  deleterious  and  destructive  drug,  with  intent 
thereby  to  injure  the  health  of  the  said  E.  J.,  and  the  said  E.  J.  be- 
came in  consequence  thereof  sick,  sore  and  diseased,  and  disordered 
iu  her  body,  insomuch  that  her  life  was  greatly  despaired  of,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

(*/9dd  count  for  common  assault.) 

Assault  with   intent  to  kill  an  infirm  person,  by  throwing  him  on  the 
ground  and  beating  him.{h) 

That  A.  N.,  late  of  the  county  aforesaid,  labourer,  on,  &c.,  with 
f  )rce  and  arms,  at  and  in  the  county  aforesaid,  in  and  upon  one  A., 
a  man  of  colour,  then  and  there  being  a  deformed  person,  and  by  rea- 
son of  his  being  such  a  deformed  person,  being  unable  to  walk  or 
otherwise  to  move  himself  from  place  to  place,  and  also  then  and 

{j)  Tiiis  count  was  sustained  in  R.  v.  Button,  8  C.  &  P.  660. 

(A)  Nixon  V.  People,  2  Scam.  267.  On  this  case  Browne  J.,  said  :  "This  was  an  indict- 
ment to  commit  murder,  upon  wiiich  Nixon  was  tried  at  the  last  April  term  of  the  White 
( 'ircuit  Court,  and  found  guilty ;  and  a  motion  made  in  arrest  of  judgnleut,  which  was 
overruled. 

"The  errors  assigned  bring  into  full  view  such  parts  of  the  record  as  require  particular 
attention  from  the  court,  and  are  as  follows:  1.  The  facts  set  forth  in  the  indictment 
below  do  not  constitute  the  offence  with  which  said  Nixon  was  charged.  2.  The  indict- 
ment docs  not  sufficiently  describe  the  place  where  Adam  was  abandoned,  so  as  to  sliow 
that  death  would  probably  have  been  caused  by  such  abandonment.  3.  The  indictment 
docs  not  sufTicicntly  set  forth  the  means  by  which  the  otTence  charged  was  committed. 
4.  The  court  cried  in  refusing  the  motion  for  a  new  trial. 

"This  iiulictmcnt  was  brought  under  a  statute  of  this  state  (R.  L.  180,  s.  52;  Gale's  Stat. 
206),  which  provides,  that  an  assault  with  an  intent  to  commit  nmrdcr,  shall  subject  the 
offender  to  confinement  in  the  penitentiary  for  a  term  not  less  than  one  year  nor  more  than 
f(jurfeen  years.  Tliis  indictment  has  every  ingredient  necessary  to  constitute  a  good  one, 
under  this  statute.  The  ofFunce  is  well  set  out.  There  n)ay  be  a  thousand  forms  of  deaths 
bv  wliich  human  nature  may  be  overcome,  by  poisoning,  starving,  drowning,  &c.  This 
ditfers  from  most  cases  of  assault  with  intent  to  commit  murder;  it  is  more  malignant, 
and  discovers  more  depravity.  But  if  one  assault  vvitli  intent  to  commit  murder  differs 
from  another,  it  makes  it  no  less  a  crime.  This  one  seems  to  be  of  a  very  atrocious  cha- 
racter," 


120  OFFENCES  AGAINST  THE  PERSON". 

there  being  defifient  in  voice,  so  as  to  be  unable  to  call  aloud,  and  in 
the  peace  of  God  and  of  the  people  of  the  State  of  Illinois  then  and 
there  also  being,  unlawfully  did  make  an  assault,  and  then  and  there 
forced  and  threw  the  said  A.  from  a  certain  wagon,  in  which  he,  the 
said  A.,  then  and  there  was,  to  and  upon  the  ground,  the  said  ground 
then  and  there  being  frozen  and  very  cold,  and  then  and  there  did 
force  and  compel  the  said  A.  (so  being  such  deformed  person  as  afore- 
said, and  also  by  reason  of  his  being  such  deformed  person,  being 
unable  to  move  himself  from  place  to  place  as  aforesaid,  and  also 
being  deficiQnt  in  voice,  so  as  to  be  unable  to  call  aloud  as  aforesaid), 
then  and  there  to  lie  upon  the  ground,  so  being  frozen  and  very  cold 
as  aforesaid,  and  then  and  there  did  abandon  and  leave  him,  the  said 
A.,  lying  on  the  ground  as  aforesaid,  to  the  great  pain  and  torture  of 
the  said  A.,  and  to  the  great  damage  and  impoverishment  of  his 
iiealth  and  strength  of  body,  with  intent  him  the  said  A.,  by  the 
means  aforesaid,  then  and  there  feloniously,  wilfully  and  of  his  malice 
aforethought,  to  kill  and  murder,  and  other  wrongs  to  him,  the  said 
A.,  then  and  there  did,  to  the  great  damage  of  him  the  said  A.,  against. 
&c.  [Conclude  as  in  book  1,  chap.  3). 

[See  for  "Assaults,  with  intent,'^  ^^c,  post,  p.  124  et  seq.,  and  also  book 
V.  chap.  12]. 

Assaidt  with  beating  and  icoimding  on  the  high  seas. 

The  jurors  of  the  said  United  States,  within  and  for  the  said  dis- 
trict, upon  their  oath  present,  that  C.  W.  C,  mariner,  and  C.  G.  A., 
both  late  of  Nantucket  in  said  district,  on,  &c.,  in  and  on  board  of  a 
certain  ship  or  vessel  called  the  J.  M.,  then  lying  within  the  jurisdic- 
tion of  a  foreign  state  or  sovereign,  to  wit,  in  the  port  of  Paita,  in 
Peru,  the  said  J,  M.  then  and  there  being  an  American  ship  or  vessel 
belonging  to  certain  persons  citizens  of  the  United  States,  whose 
names  to  the  jurors  aforesaid  are  as  yet  unknown,  with  force  and 
arms,  an  assault  did  make  in  and  upon  one  T.  B.,  and  him  the  said 
B.  then  and  there,  from  malice,  hatred  and  revenge,  and  without  jus- 
tifiable cause  did  beat  and  wound,  he  the  said  C.  then  and  there  being 
the  chief-mate  of  said  ship  or  vessel,  lie  the  said  A.  then  and  there 
being  the  third-mate  of  said  ship  or  vessel,  and  he  the  said  B.  then 
and  there  being  one  of  the  crew  thereof;  against,  &c.,  and  contrary, 
&c.    [Conclude  as  in  book  1,  chap.  3). 

Assault  on  high  seas,  by  binding  the  prosecutor  and  forcing  an  iron  bolt 
doum  his  throat. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  present, 
that  the  said  C.  W.  C.  and  C.  G.  A.,  both  late  of  Nantucket  in  said 
district,  on,  &c.,  in  and  on  board  of  a  certain  ship  or  vessel  called,, 
&.C.,  then  lying  within  the  jurisdiction  of  a  foreign  state  or  sovereign, 
to  wit,  in  the  [)ort  of  Paita,  in  Peru,  the  said  J.  M.  tlien  and  there  being 
an  American  ship  or  vessel  belonging  to  certain  persons  citizens  of  the 
United  States,  whose  names  to  the  jurors  aforesaid  are  as  yet  un- 
known, with  force  and  arms,  an  assault  did  make  in  and  upon  one 


ASSAULTS.  121 

T.  B.,  and  him  the  said  B.  then  and  there,  from  malice,  hatred  and 
revenge,  and  without  justifiable  cause,  did  bind  and  imprison,  and 
being  so  bound  and  imprisoned,  did  Ibrce  into  the  mouth  and  between 
the  teeth  of  him  the  said  B.,  with  great  force  and  violence,  an  iron 
bolt  called  a  pump  bolt,  and  the  same  bolt  did  then  and  there  bind 
and  tie  in  the  mouth  and  between  the  teeth  of  him  the  said  B.,  and 
by  the  said  forcing  of  the  said  bolt  into  the  mouth  and  between  the 
teeth  of  said  B.,  did  bruise  and  lacerate  the  lips  and  gums  of  said  B., 
which  said  forcing  of  said  bolt  into  the  mouth  and  between  the  teeth 
of  said  R,  and  so  binding  and  tying  the  same  therein,  was  a  cruel  and 
unusual  punishment ;  he  the  said  B.  then  and  there  being  one  of  the 
crew  of  the  said  ship,  and  they  the  said  C.  W.  C.  and  C.  G.  A.  being 
officers  thereof,  to  wit,  the  said  C.  being  then  and  there  the  first-mate, 
and  said  A.  being  then  and  there  third-mate  of  said  ship;  against,  &c., 
and  contrary,  &c.     (Conclude  as  in  book  1,  chap.  3). 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  present, 
that  afterwards,  to  wit,  on,  &:c,,  the  said  C.  W.  C.  and  C.  G.  A.  were 
first  appreliended  in  said  District  of  Massachusetts,  to  wit,  at  Boston, 
which  was  the  district  in  which  the  said  C.  and  A.  were  first  appre- 
hended after  the  commission  of  the  off'ence  aforesaid.(/) 

Assault  on  high  seas,  ivith  dangerous  imapon. 

That  late  of  the   City  and    County  of  New  York,   ni 

the  district  aforesaid,  {state  occupation),  heretofore  on,  &c.,  with 
force  and  arms,  on  the  high  seas,  out  of  the  jurisdiction  of  any  par- 
ticular state  of  the  said  United  States  of  America,  on  waters  within 
the  admiralty  and  m.aritime  jurisdiction  of  the  said  United  States  and 
within  the  jurisdiction  of  this  court,  in  and  on  board  of  a  certain 
American  vessel,  being  a  called  the  belonging  in  whole 

or  in  part  to  a  citizen  or  citizens  of  the  said  United  States,  whose 
name  or  names  are  to  the  said  jurors  unknown,  with  a  dangerous 
weapon,  to  wit,  with  a  [state  particularly  the  weapon  and  dimerv 
sions  of  the  same),  in  and  upon  one  in  the  peace  of  God  and 

of  the  said  United  States,  then  and  there  being  in  and  on  board  of 
said  called  the  feloniously  did  commit  an  assault,  to  the 

great  damage  of  the  said  against,  &c.,  and  against,  «&.c.    {Cow- 

elude  as  in  book  1,  chap.  3). 

Second  count. 

That  the  said  heretofore,  on,  &c.,  in  and  on  board  of  a 

certain  American  vessel,  being  a  called  the  then  and  there 

belonging  and  appertaining  to  a  certain  person  or  persons,  then  and 
still  being  a  citizen  or  citizens  of  the  said  United  States,  whose  name 
or  names  are  to  the  said  jurors  unknown,  with  force  and  arms  on  the 
high  seas,  in  and  on  board  said  out  of  the  jurisdiction  of  any 

particular  state  of  the  said  United  States,  on  waters  within  the  admi- 
ralty and  maritime  jurisdiction  of  the  said  United  States,  and  within 
the  jurisdiction  of  this  court,  with  a  dangerous  weapon,  to  wit,  with 

(I)  See  post,  book  v.  chap.  6,  for  furtlicr  forms  on  this  head. 
11 


J  22  OFFEXCES  AGAINST  THE  PERSOIf. 

a  [repeat  description  and  dimensions  as  in  first  coii.nt),m  and  upon 
one  belonging  to  the  company  of  said  vessel,  being  a 

called  the  in  the  peace  of  God  and  of  the  said  United  States, 

then  and  there  being  feloniously  did  make  an  assault,  he  the 

said  benig  one  of  the  cotTipany  of  the  said  to  the  great 

damage  of  the  said  against,  &c.,  and  against,  &c.     {Conclude 

as  in  book  1,  chap.  3). 

Third  count. 

Like  second  count,  inserting  after  "being  one  of  the  company  of 
the  said  ,"  and  before  "to  the  great  damage  of  the  said  ," 

"and  other  wrongs  to  the  said  then  and  there  did." 

Last  count. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  pre- 
sent, that  the  Southern  District  of  New  York  [or  otherivise)  in  the 
second  circuit,  is  the  district  and  circuit  in  which  the  said  was 

first  apprehended  for  the  said  offence. 

Another  form  for  same. 

That  late  of  the  City  and  County  of  New  York,  in  the  cir- 

cuit and  district  aforesaid,  heretofore,  to  wit,  on,  &c.,  with  force 

and  arms,  on  the  high  seas,  [or,  as  the  case  may  be),  on  waters  with- 
in the  admiralty  and  maritime  jurisdiction  of  the  United  States  of 
America,  out  of  the  jurisdiction  of  any  particular  state  of  the  said 
United  States,  and  within  the  jurisdiction  of  this  court,  in  and  on 
board  of  a  certain  vessel,  being  a  called  the  belonging 

and  appertaining  to  a  certain  person  or  persons  whose  names  are  to 
the  said  jurors  unknown,  then  and  still  being  a  citizen  or  citizens  of 
tlie  United  States  of  America,  with  a  dangerous  weapon,  called  a 
[describe  the  dimensions),  in  and  upon  one  in  the  peace 

of  God  and  of  the  said  United  States  then  and  there  being,  feloniously 
did  make  an  assault,  and  other  wrongs  to  the  said  then  and 

there  did,  to  the  great  damage  of  the  said  against,  &c.,  and 

against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Second  count. 

That  the  said  late  of  the  City  and  County  of  New  York, 

in  the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on,  &c., 

with  force  and  arms  on  the  high  seas,  on  waters  within  the  admiralty 
and  maritime  jurisdiction  of  the  United  States  of  America,  out  of  the 
jiirisdiclion  of  any  particular  state  of  the  said  United  States,  and 
within  the  jurisdiction  of  this  court,  in  and  on  board  of  a  certain  ves- 
sel, being  a  called  the  belonging  and  appertaining  to  a 
certain  person  or  persons,  whose  names  are  to  the  said  jurors  un- 
known, then  and  still  being  a  citizen  or  citizens  of  the  United  States 
ol  America,  with  a  dangerous  weapon,  called  a  [describe  as  be- 
fore), in  and  u|)on  one  in  the  peace  of  God  and  of  the  said 
United  Slates,  then  and  there  being,  and  also  then  and  there  being 
master  [or  otherwise)  of  the  said  vessel,  being  a  called  the 
feloniously  did  make  an  assault,  and  other  wrongs  to  the  said 
then  and  there  did,  to  the  great  damage  of  the  said 
against,  &c.,and  against,  &.c.     [Coticlude  as  in  book  1,  chap.  3). 


ASSAULTS.  123 

Last  count. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  farther  pre- 
sent, that  the  Southern  District  of  New  York,  in  the  second  circuit, 
is  the  circuit  and  district  into  which  the  said  was  first  brought, 

and  in  which  he  was  first  apprehended  for  the  said  offence. 

Same  in  a  foreign  port,  the  weapon  being  a  Spanish  knife. 

That  heretofore,  to  wit,  on,  &c.,  on  board  of  a  certain  vessel,  to  wit, 
the  brig  Voha,  belonging  to  a  citizen  and  citizens  of  the  United  States, 
whose  name  or  names  are  to  this  inquest  unknown,  while  lying  in  a 
port,  to  wit,  the  port  of  Rio  de  Janeiro,  within  the  jurisdiction  of  a 
foreign  state,  to  wit,  of  Brazil,  to  wit,  at  the  Eastern  District  of  Penn- 
sylvania aforesaid,  and  within  the  jurisdiction  of  this  court,  a  person, 
to  wit,  one  S.  T.,  then  and  there  being  a  person  belonging  to 
the  company  of  the  said  vessel,  did  then  and  there,  with  a  danger- 
ous weapon,  to  wit,  a  Spanish  knife,  commit  an  assault  on  another 
person,  to  wit,  one  W.  A.  R.,  then  and  there  belonging  to  the 
company  of  the  said  vessel,  and  other  wrongs  to  him  the  said  W. 
A.  R.,  he  the  said  S.  T.,  then  and  there  'unlawfully,  violent- 
ly and  maliciously  did,  to  the  great  damage  of  him  the  said  W. 
A.  R.,  contrary,  &c.,  and  against,  &c.    [Conclude  as  in  book  1,  chap. 

Second  count,  same  as  first,  charging  the  instrument  as  follows: 

"  With  a  dangerous  weapon,  to  wit,  a  sharp  cutting  instrument." 

Third  count.     Assaidt  iviih  intent  to  kill. 

That  at,  &c.,  on,  &c,,  on  board  of  a  certain  vesssl,  to  wit,  the  brig 
Volta,  belonging  to  a  citizen  and  citizens  of  the  United  States,  while 
lying  in  a  port,  to  wit,  the  port  of  Rio  de  Janeiro,  within  the  jurisdic- 
tion of  a  foreign  state,  to  wit,  of  Brazil,  to  wit,  at  the  Eastern  Dis- 
trict of  Pennsylvania  aforesaid,  and  within  the  jurisdiction  of  the 
court  aforesaid,  a  person,  to  wit,  one  S.  T,,  then  and  there  being  a 
person  belonging  to  the  company  of  the  said  vessel,  did  then  and 
there,  with  intent  to  kill  a  person,  to  wit,  one  W.  A.  R.,  then  and 
there  belonging  to  the  company  of  the  said  vessel,  did  then  and  there 
commit  an  assault  on  the  said  W.  A.  R.,  then  and  there  be- 
longing to  the  company  of  said  vessel  as  aforesaid,  and  other 
wrongs  to  him  the  said  W.  A.  R.,  he  the  said  S.  T.,  then  and  there 
unlawfully,  violently,  wickedly  and  maliciously  did,  to  the  great 
damage  of  him  the  said  W.  A.  R.,  contrary,  &c.,  and  against,  &:c. 
{Conclude  as  in  book  1,  chap.  3). 

(Final  count  as  on  p.  17).(//) 

(ZZ)  On  p.  17,  the  final  counts  are  given  in  cases  where  the  offender  was  either  first 
brought  or  first  apprehended  within  the  particular  district  in  wliich  tlie  iiuiiclment  is  found. 
In  tiie  second  form  on  p.  18,  in  cases  where  the  offender  is  first  broiiirhl  wiliiin  the  parti- 
cular circuit,  a  misprint  occurs  which  is  noticed  in  the  errata,  viz.  tiiat  the  last  line  should 
read  "  was  first  brought  for  the  said  offence,"  instead  of  "  was  first  apprehended,  &,c.,"  as 
appears  in  the  text.  These  counts,  one  of  which  is  necessary  in  all  cases  where  the  offence 
was  coniinittcd  within  mere  admiralty  jurisdiction,  arc  varied  in  phraseolo|^y  in  the  seve- 
ral circuits,  and  would  seem,  in  fact,  with  their  several  modifications,  to  be  used  indiscri- 
minately in  cases  where  the  offender  is  either  first  broujrht  or  first  apfircliended,  &-c.  The 
lullowinfr  forms,  in  addition  to  those  in  the  text,  are  of  frcipu'iit  occurrence. 

TJjal  afterwards,  to  wit,  &.c.,  the  said  A.  B.  was  first  brought  into  Ss.  in  said  district,  and 


124  OFFENCES  AGAINST  THE  PERSON. 

Assault  and  false  imprisonment  at  common  IaiL\{m) 

That  J.  S.,  late  of  the  parish  of  B.,  in  the  County  of  M,,  labourer, 
on,  &c.,  with  force  and  arms,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  in  and  upon  one  J.  N.,  in  the  peace  of  God  and  of  the 
said  state,  then  and  there  being,  did  make  an  assault,  and  him  the 
said  J.  N,  then  and  there  unlawfully  and  injuriously,  and  against  the 
will  of  the  said  J,  N.,  and  also  against  the  laws  of  this  state,  and 
without  any  legal  warrant,  authority  or  reasonable  or  justifiable 
cause  whatsoever,  did  imprison  and  detain  so  imprisoned  there  for  a 
long  space  of  time,  to  wit,  for  the  space  of  ten  hours  then  next  fol- 
lowing, *  and  other  wrongs  to  the  said  J.  N.  then  and  there  did,  to 
the  great  damage  of  the  said  J.  N.,  and  against,  &c.  {If  any  money 
loere  extorted  from  the  prosecutor  for  setting  hiin  at  liberty,  add 
an  averment  of  it  immediatehj  after  the  above  asterisk,  as  thus) : 
Then  next  following,  and  until  he  the  said  J.  N.  had  paid  to  the  said 
J.  S.  the  sum  of  five  dollars  of  the  moneys  of  the  said  J.  N.,  for  his 
enlargement ;  and  other  wrongs,  &.c.  (^^dd  a  count  for  a  cofnmon 
assault). 

MssauU  and  false  im'prisonment,  witli  the  obtaining  of  five  dollars.     {If 
there  be  no  extortion,  the  paragraph  in  brackets  can  be  omitted.){n) 

That  A.  B.,  of,  &c.,  on,  &c.,  at,  &c.,  with  force  and  arms,  in  and 
upon  one  E.  F.  did  make  an  assault,  and  him  the  said  E.  F.  then  and 
there  unlawfully  and  injuriously,  and  against  the  will  and  without 
the  consent  of  the  said  E.  F.,  and  also  against  the  laws  of  this  state, 
without  any  legal  warrant,  authority  or  justifiable  cause  whatsoever, 
did  imprison  and  detain  for  a  long  time,  to  wit,  for  the  space  of 
hours  then  next  following,  (and  until  he  the  said  E.  F.  had  paid  to 
him  the  said  A.  B.  the  sum  of  five  dollars,  lawful  money  of  the  United 
States,  of  the  moneys  of  the  said  E.  F.  lor  his  enlargement),  and  other 
wrongs  to  the  said  E.  F.  then  and  there  did,  to  the  great  damage  of 
the  said  E.  F.,  against,  &c.  (If  a  note  was  obtained  instead  of  a 
sum  of  money,  insert  instead  of  the  above  passage  in  brackets)  : 
And  until  he  the  said  E.  F.,  for  his  delivery  from  the  said  imprison- 
ment, had  signed  and  given  to  the  said  A.  B.  a  note  under  the  hand 
of  the  said  E.  F.,  whereby  he  the  said  E.  F.  promised  to  pay  to  the 
said  A.  B.  the  sum  of  ten  pounds,  &c. 

that  the  snid  district  of  M.  is  the  district  into  which  he  was  first  brouglit  after  committing 
the  offence  aforesaid. 

That  the  Southern  District  of  New  York  is  tlic  district  in  whicli  tlic  said  A.  B.  was  first 
hr^iufrht  and  apprehended  for  the  said  ofFcnee. 

Th.'it  the  said  A.  IJ.,  &.C.,  after  the  eonniiission  of  the  said  offence,  to  wit,  on,  &.C.,  was 
first  hrou^fit  into  the  said  M.  district,  and  that  the  said  M.  district  is  tlie  district  into 
whicii  the  said  offender  was  first  broijjrht  as  aforesaid.    ( Davis'  Prec.  21^4). 

That  the  said  ('.  D.,  the  offender  aforesaid,  was  first  hronirht  into  II.  aforesaid,  in  the 
district  of  uiu-r  the  commission  of  said  off(;nce,  and  that  the  said  district  of  is 

the  district  into  whieii  they  were  first  hrouplit.    (licwis'  C.  L.  645). 

S.e  for  other  forms  of  same,  i)p.  !)2,  !)3,  94,  97,  !)!),  123. 

Where  llie  offender  is  out  of  the  jurisdiction,  and  the  hill  is  found  for  the  purpose  of  is- 
snintf  a  bench  warrant,  of  course  the  final  count  is  to  be  omitted. 

(m)  Arch.  C.  V.  5lh  Am.  ed.  55ii.  {n)  Stark.  C.  P.  428. 


ASSAULTS.  125 

Assault  with  intent  to  murder  at  common  law.{o) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  with  a  certain  drawn  sword,  which 
he  the  said  A.  B.  in  his  right  hand  then  and  there  had  and  held,  in  and 
upon  one  S.  W,  did  make  an  assault,  with  an  intent  him  the  said  S. 
then  and  there  feloniously,  wilfully  and  of  his  malice  aforethought,  to 
kill  and  murder,  and  other  wrongs  to  the  said  S.  W.  then  and  there 
did,  against,  &.c.(oo) 

Another  farm  for  same. 

That  at  on,  &c.,  with  force  and  arms,  to  wit,  with 

knives,  hatchets  and  tomahawks,  in  and  upon  one  E.  G.  of  &.C., 

ill  the  peace  of  the  people  then  and  there  being,  did  make  an  assault, 
and  with  intent  to  commit  murder  on  the  said  E.  G.,  did  then  and 
there  cut,  beat,  strike,  wound  and  evil-treat  him  the  said  E.  G.,  and 
other  wrongs  to  the  said  E.  G.,  then  and  there  did,  to  the  damage  of 
the  said  E.  G.,  and  against,  &.c.{p)    (^Conclude  as  in  book  1,  chap.  3). 

Assault  with  intent  to  droicn.{q) 

That  A.  B.,  of  in  the  County  of  labourer,  on 

with  force  and  arms,  at  in  the  county  aforesaid,  in  and  upon 

the  body  of  one  C.  D.,  with  a  dangerous  weapon,  to  wit,  with  a  large 
stick,  which  he  the  said  A.  B.  in  both  his  hands  then  and  there  had 
and  held,  did  make  an  assault,  and  him  the  said  C.  D.  did  then  and 
there  beat,  wound  and  abuse;  and  that  he  the  said  A.  B.,  with  both 
his  hands,  did  then  and  there  unlawfully,  violently  and  maliciously 
cast,  push  and  throw  the  said  C.  D.  into  a  certain  pond  there  situate 
and  being,  wherein  there  was  a  large  quantity  of  water,  and  did  then 
and  there  keep,  press  down  and  confine  the  said  C,  D.  in  and  under 
the  said  water  for  the  space  of  five  minutes,  with  intention  him  the 
said  C,  D.  then  and  there  feloniously,  wilfully  and  of  his  malice  afore- 
thought, to  suffocate  and  drown  in  the  said  water;  and  him  the  said 
C.  D.,  by  means  thereof,  wilfully,  feloniously  and  of  his  malice  afore- 
thought, to  kill  and  murder ;  and  other  wrongs  to  the  said  C.  D.  then 
and  there  did,  to  the  great  damage  of  him  the  said  C.  D.,  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 


(o)  Stark.  C.  P.  430.  See  for  a  form  of  assault  with  intent  to  murder,  &c.,  under  the 
Indiana  statute,  ante,  p.  119. 

{oo)  For  assault  with  intent  to  kill,  in  the  United  States  courts,  see  ante,  p.  123;  see 
also  ante,  p.  120. 

(p)  People  V.  Pettit,  3  Johns.  R.  511.  This  indictment  was  attacked,  1st,  because  it  did 
not  charge  the  offence  to  have  been  committed  feloniously;  2dly,  because  the  instruments 
were  not  accurately  described  ;  and  3dly,  because  the  intent  was  not  set  out  with  sufficient 
precision.  ^^ Per  curiam:  The  intent  to  commit  murder  was  liere  charged  in  tlie  words 
of  the  statute,  and  we  think  that  was  sufficient.  Tlic  indictment  is  for  an  assault  and 
battery,  and  the  quo  aniino  is  to  be  collected  from  the  circumstances.  It  was  enough  to 
state,  with  the  usual  precision,  the  facts  requisite  to  constitute  an  assault  and  battery,  and 
to  aver  the  intent  with  which  it  was  made.  The  indictment  required  no  other  facts  tli:m 
were  necessary  to  establish  an  assault  and  battery.  The  crime  charged  was,  alter  all,  but 
a  misdemeanor.     It  was  not  a  felony,  Uiough  the  intent  was  to  commit  one." 

{'D  Davis'  Prcc.  66. 

11* 


126  OFFENCES  AGAINST  THE  PERSON. 

Assault  with  intent  to  murder  under  the  A''ew  York  Rev.  Stat. 

That  E.  L.,  late  of  the  First  Ward  of  the  City  of  New  York,  in  the 
County  of  New  York  aforesaid,  labourer,  on  the  day  of 

in  the  year,  &c.,  with  force  and  arms,  at  the  ward,  city  and  county 
aforesaid,  in  and  upon  N.  J.,  then  and  there  being,  feloniously  did 
make  an  assault,  and  him  the  said  N.  J.  with  a  certain  knife,  which 
the  said  E.  L.  in  his  riglit  hand  then  and  there  had  and  held  (the  said 
knife  being  a  deadly  weapon),  feloniously  did  beat,  strike,  cut 

and  wound,  with  intent  him  the  said  N.  J.  then  and  there  feloniously 
and  wilfully  to  kill,  and  other  wrongs  to  the  said  N.  J.  then  and 
there  did,  to  the  great  damage  of  the  said  N.  J.;  against,  &,c.,  and 
against,  (fee.    {Conclude  as  in  book  1,  chap.  3). 

Second  count.      With  intent  to  maim. 

That  the  said  E.  L.,  on  the  said  day  of  in  the  year  last 

aforesaid,  with  force  and  arms,  at  the  ward,  city  and  county  aforesaid, 
in  and  upon  the  said  N.  J.  then  and  there  being,  feloniously  did  make 
another  assault,  and  him  the  said  N.  J.  with  a  certain  knife,  which 
he  the  said  E.  L.  in  his  right  hand  then  and  there  had  and  held,  the 
said  knite  being  a  deadly  weapon,  feloniously  did  beat,  strike, 
cut  and  wound,  with  intent  him  the  said  N.  J.  then  and  there  felo- 
niously and  wilfully  to  maim,  against,  &c.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chajJ.  3). 

Assault  icith  intent  to  commit  a  felony  generaUy.{r) 

That  A.  B.,  &c.,  at,  &c.,  aforesaid,  in  and  upon  one  J.  N.,  in  the 
peace  of  God  and  of  our  lady  the  queen  then  and  there  being,  unlaw- 
fully did  make  an  assault,  and  him  the  said  J.  N.  then  and  there  did 
beat,  wound  and  ill-treat,  with  intent  [here  state  the  felony  intended 
thus) :  him  tlie  said  J.  N.  then  and  there  feloniously,  wilfully  and  of 
liis  malice  aforethought,  to  kill  and  murder,  and  other  wrongs  to  the 
said  J.  N.  then  and  there  did,  to  the  great  damage  of  the  said  J.  N. ; 
against  the  form  of  the  statute  in  such  case  made  and  provided,  and 
against,  &c. 

{Add  a  count  for  common  assault). 

Felonious  assault  under  the  Massachusetts  statute.{s) 

That  A.  B.,  of  B.  aforesaid,  yeoman,  on,  &c.,  at  B,  aforesaid,  with 
force  and  arms,  the  said  A.  B.  tiien  and  there  being  armed  with  a 
dangerous  weapon,  to  wit,  a  sword,  in  and  upon  one  E.  F.,  then  and 
there  in  the  peace  of  said  commonwealth  being,  an  assault  did  make, 

(>)  Tli'iH  form  is  (riven  by  Mr.  Arclibold,  C  P.  .'>tli  Am.  cd.  .'i-lt,  as  good  under  the  stat. 
y  G(;o.  IV.  c.  .'Jl,  s.  y.'j,  wliicli  enacts,  tliut  any  person  wlio  shall  be  convicted  "of  any  as- 
siiult  to  commit  felony,"  shall  be  punished,  &c.  As  will  be  seen  by  a  comparison  of  this 
statute  with  that  in  New  York  (2  Kev.  Stat.  GG5-G,  s.  39),  the  indictment  in  the  text  will 
be  jjood  in  that  state  in  the  particular  cases  provided  for. 

C»)  An  assault  with  an  intent  to  murder  i»  not  a  felony  under  the  statute,  and  consc- 
ipicntiy  the  word  "  (eloniously"  should  not  be  admitted,  and  this  though  the  statute  pro. 
vidcs  that  the  defendant  shall  be  deenu'd  a  felonious  assaulter;  Com.  v.  Barlow,  4  Mass. 
4.'<y.  It  would  seem,  liowever,  that  if  the  term  be  improperly  used,  it  may  be  rejected  as 
surplusage  ;  Com.  v.  Sijuirc^  I  Met.  258;  seo  VVli.  C.  L.  7, 


ASSAULTS.  127 

with  intent  him  the  said  E.  F.,  to,  &:c.,  and  by  so  doing,  and  by  force 
of  the  statute  in  such  case  made  and  provided,  he  the  said  A.  B.,  is 
deemed  a  felonious  assaulter.  And  so  the  jurors  aforesaid,  on  their 
oath  aforesaid,  do  say  and  present,  that  the  said  A.  B.,  at  B.  afore- 
said, on,  &c.,  with  force  and  arms,  feloniously  assaulted  the  said  E. 
F.,  ill  manner  and  form  aforesaid,  against,  &:c.,  and  contrary,  &.c. 
{Conclude  as  in  book  1,  chap.  3). 

Assault  with  intent  to  murder  in  South  Carolina. 

That  A.  B.,  on,  &c.,  with  force  and  arms,  at  in  the  district  of 

and  state  aforesaid,  in  and  upon  E.  F.,  in  the  peace  of  God 
and  of  the  said  state  aforesaid,  then  and  there  being,  did  make  an 
assault,  and  him  the  said  E.  F.,  did,  &c.,  with  intent  him  the  said  E. 
F.,  then  and  there  feloniously,  wilfully  and  of  his  malice  aforethought, 
to  Icill  and  murder,  and  other  wrongs  to  the  said  E.  F,,  then  and 
there  did,  to  the  great  damage  of  the  said  E.  F,,  and  against  &:c. 
[Conclude  as  in  book  1,  chaji.  3). 

Assault  with  intejit  to  rob,  against  two.{t) 

That  the  prisoners,  on,  &c.,  at,  &c.,  in  and  upon  R.  B.,  in  the  peace 
of  God  and  our  said  lady  the  queen,  then  and  there  being,  feloniously 
did  together  make  an  assault  with  intent  the  moneys,  goods  and  chat- 
tels of  the  said  R.  B.,  from  the  person  and  against  the  will  of  him  the 
said  R.  B.,  then  and  there  feloniously  and  violently  to  rob,  steal,  take 
and  carry  away,  against,  &c.     {Conclude  as  in  book  1,  chajj.  3). 

Another  form  for  same.(u) 

That  defendants,  late  of  the  said  county,  on,  &c.,  in  the  County  of 
C.  aforesaid,  in  and  upon  the  person  of  G.  H.  G.,  in  the  peace  of  the 
people  of  the  State  of  Illinois,  then  and  there  being,  with  force  and 
arms,  did  make  an  assault,  with  an  intent,  then  and  there,  unlawfully, 
wilfully  and  feloniously  to  commit  a  robbery,  and  other  wrongs  to 
the  said  G.  H.  G.,  did  then  and  there,  &c. 

Assault  with  intent  to  ravish.{v) 

That  A.  B.,  &c.,  on,  &c.,  at,  &:c.,  on  one  E.  F.,  did  make  an  assault, 
and  her  the  said  E.  F.,  then  and  there  did  beat,  wound  and  ill-treat 
so  that  her  life  was  greatly  despaired  of,  with  an  intent  her  the  said 
E.  F.,  against  her  will,  then  and  there  feloniously  to  ravish  and  car- 
nally know,  and  other  wrongs  to  her  the  said  E.  F.,  then  and  there 
did,  against,  &.c.     {Conclude  as  in  book  1,  chap.  3). 

(J.)  R.  V.  Huxley,  1  C.  &  M.  59fi.  This  appears  to  be  the  form  used  in  the  Central 
Criminal  Court,  and  was  sustained  by  Patteson  and  Creswell  Js.,  in  the  above  case. 

(m)  Conoiiy  v.  State,  3  Scam.  477.     This  form,  tiiough  very  loose,  was  sustained. 

(»)  Stark.  C.  P.  429.  "  If  the  otFence  of  rape,"  remarks  Mr.  Starkic,  "  appears  to  have 
been  actually  committed,  the  prisoner  should  be  acquitted,  since  the  misdemeanor  merges 
ill  the  felony;  see  East  P.  C.  411."  See  also  Wh.  C.  L.  7,294.  As  to  propriety  of  join- 
ing this  count  with  a  count  for  vi\\k\  see  ante,  p.  13. 


128  OFFEVCES  AGAINST  THE  PERSON. 

Anoth  er  form  for  same,  {ic) 

That  W.  S.,  of  the  county  aforesaid,  yeoman,  on,  &c.,  at  the  county 
aforesaid,  and  within  the  jurisdiction  of  this  court,  in  and  upon  S.  C, 
spinster,  in  the  peace  of  God,  then  and  there  being,  with  force  and 
arms,  an  assault  did  make,  with  an  intention  to  ravish  and  carnally 
know  the  said  S.  C,  and  the  same  S.  C,  did  beat,  wound  and  evilly 
treat,  so  that  her  life  was  greatly  despaired  of,  and  other  harms  to 
her  then  and  there  did  to  the  great  damage  of  the  said  S.,  and  against 
&.C.     {^Conclude  as  in  book  \,  chap.  3). 

Same  against  two.{x) 

That  A.  B.,  late,  &c.,  and  C.  D.,  late,  &c.,  on,  &c.,  at,  &c.,  in  and 
upon  E.,  the  wife  of  one  H.  S.,  did  make  an  assault,  and  her  the 
said  E.,  then  and  there  did  beat,  wound  and  ill-treat,  so  that  her  life 
was  greatly  despaired  of,  with  intent  that  he  the  said  C.  D.,  should 
then  and  there  feloniously  and  against  the  will  of  the  sa.id  E.,  ravish 
and  carnally  know  her  the  said  E.,  and  that  they  the  said  A.  B.  and 
C.  D.,  other  wrongs  to  the  said  C.  D.,  then  and  there  did,  contrary, 
&c.      {Conclude  as  in  book  1,  chap.  3). 

[Jidd  a  count  for  a  common  assault). 

Same  against  a  person  of  colour,  in  JVort/i  Carolina,  under  the  statute,  {y) 

That  S.,  a  person  of  colour,  &c.,  on,  &c.,  with  force  and  arms,  in, 
&c.,  in  and  upon  the  body  of  one  L.  S.,  a  white  female,  in  the  peace, 
&c.,  violently  and  feloniously  did  make  an  assault,  with  intent  to 
commit  a  rape  upon  the  body  of  the  said  L.  S.,  then  and  there  did 
beat,  &c.,  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Assault  with  intent  to  steal{z) 

That  A.  B.,  on,  &.C.,  on  C,  D.,  &c.,  did  make  an  assault,  &c.,  with  in- 
tent feloniously  to  steal,  take  and  carry  away  tlie  money  of  the  said  E., 
from  his  person;  he  put  his  right  hand  into  the  pocket  of  the  coat  of 
the  said  E.,  on  the  body  of  the  said  E.,  and  other  harms  then  and 
there  did,  &c. 

{*/idd  a  count  for  an  assault). 

(ic)  Stout  ».  Com.,  11  S.  &  R.  177.  Tlic  omission  of  the  word  "feloniously,"  which 
was  the  first  ground  of  exception  to  tlic  indictment,  was  sustained  by  the  court;  and  the 
want  of  an  averment  of  time  and  i)lacc  to  the  concluding  allegation,  was  declared  to  be 
immaterial,  the  time  and  place  named  in  the  first  clause  qualifying  tiic  whole  offence. 

(x)  Stark.  C.  P.  429.  (y)  State  u.  Sam,  a  slave,  2  Dev.  567. 

(«)  l{ogcrs  V.  Com.,  5  S.  &  R.  4G.3.  It  is  not  necessary,  as  was  held  here,  in  assault 
with  intent  to  steal,  tliat  the  goods  stolen  should  he  set  out.  " 'i'he  intention  of  the  person 
was  to  [)ick  the  pocket  of  Earle,  of  wliatever  he  fljund  in  it;  and  although  there  might  be 
nothing;  in  the  pocket,  the  intention  to  steal  is  the  same  ;  he  had  no  intention  to  steal  any 
particular  article,  for  he  might  not  know  what  was  in  it;  it  would  be  impossible  to  lay 
the  intention  in  any  other  way  than  a  general  intention  to  pick  the  pocket  of  Earle.  The 
crime  was  the  assault,  the  intention  is  only  aggravation." 


BOOK  THE   FOURTH 


OFFENCES   AGAINST  PROPERTY, 


CHAPTER  1. 


FORGERY. 


General  frame  of  indictment  at  common  Iaic.{a) 

That,  &c.,  on.,  &c.,  falsely  and  fraudulently  did  forge  and  coun- 
terfeit(6)  (and  cause  and  procure  to  be  forged  and  counterfeited), (c) 
a  certain  promissory  note  for  the  payment  of  money,  purporting  to 
be  made  by  one  A.  B.,  payable  on  demand  to  one  C.  D.,(V/)  the  tenor 
of  which  said  forged  and  counterfeited  promissory  note  is  as  follows, 
that  is  to  say :  {here  set  out  the  instintment  in  the  manner  pre- 
scribed in  note{e),  with  intent  to  defraud  the  said  A.  B.,(/)  (to  the 
great  damage  of  the  said  A.  B.),(^)  against,  &c.  (Conclude  as  in 
book  1,  chap.  3). 


(«)  This  form  is  introduced,  not  because  it  can  ever  be  of  use  as  a  precedent,  the  com- 
mon law  remedy  having  been  absorbed  by  statutes,  but  in  order  to  place  in  a  more  regu- 
lar shape  the  necessary  notes.  For  the  ground  work  of  the  latter,  I  have  depended  on 
Mr.  Starkie,  (C.  P.  106),  adding  at  large  the  American  and  the  later  English  authorities. 

(b)  "  It  is  sufficient  to  allege  that  the  defendant  forged  and  counterfeited,  though  it  is 
usual  to  aver  that  he  did  falselij  forge  and  counterfeit,  for  the  adverb  is  sufficiently  implied 
in  the  former  words;  Sty.  12 ;  1  Str.  19 ;  East  P.  C.  985 ;  R.  ».  Mariot,  2  Lev.  221 ;  R.  v. 
Dawson,  1  Str.  19.  In  Elsworlh's  case,  coram  Willcs,  York  Lent  Assizes,  1780,  East 
P.  C.  986,  the  indictment  stated  that  the  said  T.  E.,  the  said  bill  of  exchange  did  felo- 
niously  alter  and  cause  to  be  altered,  by  falsely  making,  forging  and  adding  the  letter  y 
to  tiie  word  eight  in  the  bill  mentioned,  whereby,  &c.  Tlie  second  count  alleged,  that 
certain  persons  unknown  altered  the  bill,  and  charged  the  defendant  witii  uttering  and 
publishing  the  bill  as  true,  knowing  it  to  be  forged.  The  words  of  the  statute  on  which 
the  indictment  was  founded  (2  Geo?  II.  c.  25,  s.  1),  are,  'If  any  person  shall/aisf/y  make, 
forge  or  counterfeit:  It  was  objected,  in  arrest  of  judgment,  that  the  indictment  merely 
c.iarged  that  certain  persons  unknown  did  alter,  by  falsely  makirnr,  &c.,  and  did  not 
cliarge,  in  llie  words  of  the  act,  lliat  they  falsely  made,  forged,  &c.,  and  that  the  word 
alter,  was  not  used  in  the  statute.  But  llie  judges  held  that  the  indictment  was  good, 
fiii'l  that  there  was  no  difl'ercnce  in  substance  or  in  the  nature  of  the  chartrc,  wh«  tncr  the 
indictment  were  for  feloniously  altering,  by  falsely  making  and  forging,  or  for  feloniously 


130 


OFFENCES  AGAINST  PROPERTY. 


making-  and  forging,  by  falsely  altering.  In  the  case  of  King  v.  Bigg,  3  P.  Wms.  419, 
the  indictment  alleged  tliat  the  defendant  feloniously  erased  an  endorsement  from  a  bank 
note  ;  the  jury  found  that  the  defendant  had  expunged  the  inscription,  by  means  of  some 
unknown  liquor,  and  the  judges  held  that  the  prisoner  was  guilty.  The  majority  were  of 
this  opinion,  but  the  case  involved  many  other  points,  and  the  prisoner  was  afterwards 
pardoned  on  condition  of  transporting  himself;  Str.  19;"  Stark.  C.  P.  108. 

"In  consideration  of  law,  every  alteration  of  an  instrument  amounts  to  a  forgery  of  the 
whole.  In  Dawson's  case,  it  was  holden  by  ten  judges,  that  the  alteration  of  the  figure  2 
in  a  bank  note,  to  5,  was  a  forging  of  a  bank  note;  East  P.  C.  978;"  Stark.  C.  P.  108. 

The  indictment  in  Teague's  case;  East  P.  C.  979;  for  making,  forging  and  coun- 
terfeiting a  bill  of  exchange,  under  the  stat.  7  Geo.  II.  c.  22,  was  holden  to  be  supported 
by  proof,  that  the  defendant  had  altered  a  bill  of  exchange  for  the  payment  of  iJlO  into 
£50,  both  in  words  and  figures.  It  was  objected,  that  the  defendant  ought  to  have  been 
charged  with  altering  the  genuine  bill,  since  the  stat.  7  Geo.  II.  c.  22,  makes  it  a  distinct 
offence  to  alter;  but  the  judges,  on  the  authority  of  Dawson's  case,  held  that  the  convic 
tion  was  proper,  and  that  every  alteration  of  a  true  instrument,  for  such  a  purpose,  made 
it  when  altered,  a  forgery  for  the  whole  instrument;  see  also  State  v.  Hitchens,  2  Har- 
ringt.  527;  Com.  v.  Ladd,  15  Mass.  526;  State  v.  Waters,  3  Brev.  507 ;  Com.  v.  Hay  ward, 
10  Mass.  34. 

But  in  cases  where  a  genuine  note  or  instrument  has  been  altered,  it  is  usual  to  allege 
the  alteration  in  one  count  of  the  indictment ;  see  East  P.  C.  980 ;  R.  v.  Harrison ;  R.  v. 
Elsworth,  there  referred  to. 

It  is  not  sufficient  to  aver,  that  the  defendant  forged  or  caused  to  be  forged,  for  it  is  not 
certain  and  positive;  1  Salk.  342;  5  Mod.  137;  Holt  R.  345.  An  indictment  which 
charges  a  prisoner  with  the  offences  of  falsely  making,  fbrging  and  counterfeiting,  of 
causing  and  procuring  to  be  falsely  made,  forged  and  counterfeited,  and  of  willingly 
acting  and  assisting  in  the  said  false  making,  forging  and  counterfeiting,  is  a  good  indict- 
nient,  though  all  of  these  charges  are  contained  in  a  single  count;  and  as  the  words  of  the 
statute  have  been  pursued,  there  being  a  general  verdict  of  guilty,  judgn)ent  ought  not  to 
be  arrested  on  the  ground  that  the  offences  are  distinct ;  Rasnick  v.  Com.,  2  Va.  Cases  356  ; 
State  V.  Houseall,  1  Rice's  Dig.  346;  see  Wh.  C.  L.  81.  But  where  two  distinct  offences, 
requiring  different  punishments,  are  alleged  in  the  same  count,  as  where  the  forging  of  a 
mortgage,  and  of  a  receipt  endorsed  thereon,  are  both  charged  in  the  same  count,  and  the 
defendant  be  convicted,  the  judgment  will  be  arrested;  People  v.  Wright,  9  Wend.  193. 

(c)  Tiie  allegation  in  brackets,  though  rarely  necessary,  is  not  duplicity  when  in- 
troduced; see  last  paragraph.  It  is  not  necessary,  as  it  seems,  to  go  on  to  allege  by 
what  means  the  "causing  and  procuring"  was  brought  about;  Brown  v.  Com.,  2  Leigh 
769.  •• 

((/)  It  is  essentia]  that  the  purport  of  the  instrument  should  be  properly  described,  so  as 
to  bring  it  within  the  statute.    The  authorities  on  this  point  are  collected  in  the  next  note. 

(e)   In  considering  the  particular  instrument  set  forth  will  be  considered, 

1.  In  what  manner  it  should  be  set  forth. 

2.  How  il  should  he  shown  to  be  the  instrument  (supposing  it  to  be  genuine),  the  forging 
of  which  is  prohibited. 

1.  'I'he  instrument  set  forth  may  be  prefaced  by  the  words,  "<o  the  tenor  following  "  or 
"  in  these  words"  or  "  as  fdloivs,"  or  "  in  the  words  and  figures  following:"  for  though  the 
setting  out  an  instrument  by  the  tenor,  R.  v.  Drake,  3  Salk.  224  ;  Holt  R.  347,  349,  350, 
425;  11  Mod.  95;  which  imports  a  true  copy,  is  the  most  tcci)nical  mode,  yet  it  has  been 
holden  that  the  words  " as  follows  "  are  equivalent  to  the  words,  "according  to  the  tenor 
following,"  or  "in  the  words  and  figures  following,"  and  that,  if  under  such  an  allegation, 
the  prosecutor  fail  in  proving  the  instrument  verbatim  as  laid,  the  variance  will  be  fatal; 
R.  V.  Powell,  1  Leach  1 1 0 ;  2  Bl.  Rep.  787  ;  East  P.  C.  97 ;  Wh.  C.  L.  82, 83.  And  unless  the 
indictment  profess,  by  these  or  similar  expressions,  to  set  out  a  copy  of  the  instrument  in 
words  and  figures,  it  will  be  vicious;  Lyon's  case.  Leach  696;  Dougl.  193,  194;  2  Leach 
660,  661  ;  6  East  418  to  426;  11  Mod.  96,  97;  Holt  347,  348,  349,  350,  425;  1  Chit.  C.  L, 
234  ;  3  Salk.  2:25  ;  Stam.  181  ;  ib.  C;om  v.  Stevens,  I  Mass.  203  ;  State  v.  Street,  Ty.  158  ; 
People  V.  Franklin,  3  Johns.  Cas.  299  ;  see  State  w.  Bradley,  1  Hay.  403  ;  Com.  v.  Searle,  2 
Binn.  3.32 ;  State  v.  Coffey,  N.  C.  T.  R.  272 ;  State  v.  Carr,  5  N.  Hamp.  367 ;  Com.  v.  Bai- 
ley,  1  Mass.  62;  U.  S.  v.  Britton,  2  Mason  462;  Com.  v.  M'Atee,  8  Dana's  Ky.  R.  29; 
Fost.  194 ;  R.  V.  Holland,  5  T.  R.  623 ;  1  Stark.  C.  P.  73 ;  Cowp.  672  ;  5  T.  R.  623 ;  3  Inst. 
41  ;  State  V.  (iustin,  2  Soutli.  R.  749;  State  v.  Stephens,  Wright's  Ohio  R.  73;  State  v. 
Farrand,  3  HiiJst.  333;  R.  v.  Mason,  2  East  180;  t'om.  v.  Bailey,  1  Mass.  62;  Com.  v. 
Stow,  1  Mass.  54  ;  Com.  v.  (iilicspie,  7  S.  &  R.  469  ;  2  East  P.  C.  976 ;  R.  r.  Hart,  1  Leach 
145;  K.  «.  Paul,  I  Leach  77;  (Jowp.  672;  Com.  v.  Sweney,  10  S.  &  R.  173;  Com.  v.  Par- 
nicnter,  5  Pick.  279  ;  Dougl.  193,  194;  State  v.  Waters,  t:onst.  R.  169;  Com.  v.  Kearns, 
I  Va.  Casca  109  ;  2  Bla.  Rep.  7«7  ;  State  v.  Wimberly,  3  M'Cord  190 ;  Dougl.  300 ;  State  v. 


FORGERT.  -  131 

Carter,  Conf.  N.  C.  R.  210;  State  v.  Molier,  1  Dcv.  263;  2  Leach  624;  Dougl.  97; 
State  V.  Twilty,  2  Hawks  4«7  ;  1  Marsh.  52-2;  State  c.  Handy,  20  Maine  81;  People  v. 
Warner,  5  Wend.  271  ;  Dougl.  193,  194;  Com.  v.  Riley,  Thacher's  C.  C.  67;  Hoffman  v. 
Com.,  6  Rand.  6-;5;  U.  S.  v.  Hinman,  1  Bald.  292;  State  v.  Showley,  5  Hay.  256;  State 
V.  Calvin,  &.C.,  Charlt.  151;  Com.  v.  Buckingham,  Thacher's  C.  C.  29;  State  v.  Twitty,  2 
Hawks  248  ;  Ohio  v.  M'Millcn,  5  Ohio  269. 

An  accurate  copy,  as  in  Hunter's  case.  Leach  721  ;  Mason's  case,  Leach  548;  of  the 
instrument,  in  words  and  Jigures,  R.  v.  Powell,  1  Leach  90;  Hart's  case.  Leach  172; 
must  tlien  be  set  Ibrth,  to  enable  the  court  to  see  that  it  is  one  of  those  instruments, 
the  false  making  of  which  the  law  considers  to  be  a  forgery  ;  Lyon's  case,  1  Leach 
6^j6;  Mason's  case.  East  P.  C.  975;  Gilclirist's  case.  Leach  753.  In  indictments  for 
forging  [)articular  stamps  which  the  legislature  has  directed  to  be  used,  it  appears  to  be 
unnecessary  to  give  any  particular  description  of  the  stamp ;  see  Palmer's  case.  East  P.  C'. 
893;  Collicot's  case,  4  Taunt.  300;  a  reason  which  applies  with  equal  force  to  indictments 
for  libels  and  for  the  sale  of  lottery  tickets ;  Com.  v.  Gillespie,  7  S.  &,  R,  469  ;  and  for  the 
sending  of  threatening  letters;  R.  v.  Lloyd,  East  P.  C.  976.  Sewing  to  the  parchment  on 
whicii  the  indictment  is  written,  impressions  of  forged  notes  taken  from  engraved  plates,  is 
not  a  regular  mode  of  setting  out  the  notes  in  the  indictment;  R.  v,  VVarshaner,  1  Mood. 
C.  C.  656 ;  R.  v.  Harris,  R.  v.  Moses,  R.  v.  Balls,  7  C.  &,  P.  429. 

"  In  setting  forth  the  tenor  of  an  instrument,  a  mere  variance  of  a  letter  will  not  vitiate 
the  indictment,  provided  the  sense  be  not  altered  by  changing  the  word  mis-spelt  into 
another  of  a  different  meaning.  Thus  (R.  v.  Hart,  Leach  1 72),  in  an  indictment  for  forging 
a  bill  of  exchange,  the  tenor  was  "value  received ;"  the  bill  proved  in  evidence  was  for 
value  reicevd,  and  the  judges  (De  Grey  C.  J.,  and  \Villes  J.,  were  absent).  East  P.  C.  978; 
upon  the  reserved  question  were  of  opinion,  that  the  variance  was  not  fatal,  since  it  did  not 
change  the  rcord  into  another.  So  in  an  indictment  for  perjury,  R.  v.  Beech,  Leach  137  ; 
2  Hawk,  c.  46,  s.  190  ;  it  was  assigned  for  perjury,  that  the  defendant  had  sworn  that  he 
underload  and  believed,  in  the  affidavit  he  swore,  that  he  understood  and  believed.  Upon 
a  motion  for  a  new  trial,  Ld.  Mansfield  C.  J.,  said :  "  We  have  looked  into  all  the  cases 
on  this  subject,  some  of  which  go  to  a  great  length  of  nicety  indeed,  particularly  the  case  in 
Hutton,  where  the  word  indicari  was  written  for  indictari ;  but  that  case  is  shaken  by  the 
doctrine  laid  down  in  Hawkins,  The  true  distinction  seems  to  be  taken  in  the  Queen  v. 
Drake,  Salk.  660,  that  where  the  omission  or  addition  of  a  letter  does  not  change  the  word, 
so  as  to  make  it  another  word,  the  variance  is  not  material;  R.  v.  Beech,  Leach  15"^;  see 
Salk.  660;  R.  v.  Bear,  Carth.  408;  Holt  R.  350;  Cowp.  229;  R.  v.  Mag,  Dougl.  193.  In 
Oldfield's  case,  cor.  Bayley  J.,  z.  Durham,  Sum.  Ass.  1811,  and  aflcrwards  before  the 
judges,  where  in  setting  out  the  bill  it  was  alleged  to  be  directed  to  Messrs.  M.  P,  &  Co,, 
and  the  bill  on  being  produced  was  directed  to  Messs,  INI.  P.  &,  Co.,  the  r  in  Messrs.  beinw 
omitted,  the  variance  was  held  to  be  immaterial;  see  Russell  1482;"  Stark.  C.  P.  110.  In 
the  same  way,  "Keen"  for  "  Keene,"  and  "promise"  for  "promised,"  have  been  held  im- 
material ;  Com.  v.  Riley,  Thacher's  C.  C.  67  ;  Com.  v.  Parmenter,  5  Pick.  279.  But  the 
omission  of  "evening"  after  the  word  "Tuesday,"  was  held  fatal;  Com.  v.  Buckingham, 
Thacher's  C.  C.  29.  The  most  severe  application  of  the  rule  is  in  Com,  v.  Gillespie,  7  S,  & 
R.  469,  where  "  Burrall"  was  held  a  fatal  departure  from  "  Burrill." 

An  indictment  for  fjrgcry,  alleging  the  word  birch  to  have  been  altered  to  batch,  bv 
erasing  the  letters  ire  and  inserting  the  letters  ate,  is  supported  by  evidence  of  the  erasure 
of  ir  and  substitution  of  at;  State  v.  Rowley,  Brayt.  76.  Where  the  indictment  charged 
liiat  Joseph  G.  Fogg,  the  defendant,  did  feloniously  and  fraudulently  forge  and  make  a  cer- 
tain writing  obligatory,  as  follows,  that  is  to  say,  &-c.;  but  the  instrument  set  out  purported 
on  its  free  to  be  executed  by  James  G.  Fogg  and  Joseph  G.  Fogg,  the  defendant,  it  was 
held  that  there  was  no  repugnance  in  the  charge  in  the  indictment ;  Fogg  v.  State,  9  Yerg, 
392.  Ill  Elizabeth  Dunn's  case,  the  indictment  charged  the  defendant  with  forging  a  pro- 
missory note,  the  tenor  of  which  is  as  follows,  and  then  set  out  the  note,  including  the 
attestation,  "  Witness,  Jolm  Whcttal,"  and  also  the  words,  "  Mary  IVallnce,  her  mark.'^ 
The  fact  was,  that  the  attestation  and  the  subsequent  words  had  been  added  after  the  defend- 
ant had  allixed  her  mark,  and  the  recorder  doubted  whether  the  indictment  had  been  proved, 
since  the  note  forged  by  her  differed  from  the  tenor  set  out.  But  Mr.  Baron  Pcrrot  and  Mr. 
J.  Aston  were  of  o[)inion,  that  the  indictment  in  this  respect  was  well  proved  ;  Leach  68; 
East  P.  C.  961.  where  an  indictment  alleged  that  a  forged  certificate  was  signed  by  Bow- 
ling Starke,  but  the  instrument  was  signed  B.  Starke,  and  the  signer's  true  name  was  Boi- 
ling Starke,  the  variance  was  held  fatal ;  State  v.  W^aters,  1  Const.  Ct.  R.  6C9  ;  Com.  v.  Kearns, 
1  Va.  Cases  109.  Where  an  indictment  charged  that  an  alleged  counterfeit  bill  was  a  note, 
purporting  to  be  a  note  of  the  P.  &  M.  Bank  of  South  ('arolina,  which  was  the  name  given 
by  the  charter,  but  the  tenor  of  the  note  as  set  forth  was,  "  the  President,  Directors  &,  Co.," 
as  in  the  note,  it  was  held  that  the  statement  in  the  note  was  a  mere  designation  of  the 
persons  composing  the  corporation,  who  made  themselves  liable  for  the  payment  of  the  note, 


132  OFFEXCES  AGAINST  PROPERTY. 

and  fliat  tlicrc  was  no  vaiiance  or  rei)iignaricy  between  the  tenor  and  llic  purport;  State  0. 
Clvin,  &,c.,  Cliarlt.  151.  But  an  iudicUnent  tor  forging  a  writing,  describing  the  same  as 
purporting  to  be  signed  by  tiie  president  and  directors  of  a  bank,  and  setting  out  the  forged 
writing  verbatim,  but  upon  tire  face  of  it  not  appearing  to  have  been  by  order  of  the  pre* 
sidenl  and  directors,  is  bad;  State  v.  Showley,  5  Hay.  256.  If  tlie  instrument  forged  be  ira 
a  foreign  language,  it  must  be  set  out  in  that  language,  and  a  complete  and  accurate  trans- 
1  tion  must  be  set  out;  see  R.  «.  Szudurskie,  1  Mood.  C.  C.  419;  R.  v.  Harris,  7  C.  &,  P. 
416,429;  R.  ».  Warshaner,  ib.  466.  "  Where  the  instrument  on  which  the  indictment 
is  founded  was  destroyed,  lost,  or  in  the  possession  of  the  defendant  before  bill  found,"  as 
was  remarked  in  another  place,  Wh.  C.  L.  Ifil,  "it  will  be  sufficient  to  set  forth  the  substance 
and  effect  of  the  instrument,  averring,  at  the  same  time,  as  an  excuse  for  its  non-produe- 
lion,  its  loss,  destruction  or  detention,  as  the  case  may  be.  In  such  case  it  will  be  admis- 
sible on  trial  to  give  parol  evidence  of  the  instrument,  and  such  evidence,  if  there  be  no 
substantial  variance,  will  sustain  the  indictment;  R.  v.  Haworth,  4  C.  &  P.  254;  R,  v. 
Hunter,  ib.  128;  People  v.  Kingsley,  G  Cow.  522  ;  8  Mass.  110;  People  v.  Badgely,  16  VVend. 
53;  State  v.  Parker,  1  Chapman  298;  State  v.  Potts,  4  Halst.  293;  Pendleton  v.  Com.,  4 
Leigh  694;  U.  S.  v.  Britton,  2  Mason  468;  Buclier  v.  Jarrett,  5  Bos.  &  Pull.  145;  Howe 
V.  Hall,  14  East  275.  In  England,  the  practice  is  to  give  notice  to  the  prisoner  to  produce 
the  writing  at  the  assize,  so  that  it  may  be  brought  before  the  grand  jury.  Such  notice, 
however,  it  Would  appear  from  the  cases  in  this  country,  is  not  considered  necessary  where- 
over  the  indictment  in  itself  is  a  notice ;  Pendleton  t.  Com.,  4  Leigh  694;  People  v.  Kings- 
ley,  6  Cow.  522  ;  State  v.  Potts,  4  Halst.  293 ;  People  v.  Badgeley,  1 6  VVend.  522.  Thus, 
on  tiie  trial  of  an  indictment  for  stealing  a  bank  bill,  where  the  bill  is 'in  the  defendant's 
jjossession,  it  is  not  necessary  to  account  for  the  non-production,  the  fact  of  the  indictment 
being  found  sufficient  notice  to  the  defendant  to  produce;  Com.  v.  Messinger,  1  Binn.  274; 
People  V.  Holbrook,  13  Johns.  R.  9U.  So  though  an  indictment  for  passing  counterfeit 
)noney  purport  to  set  forth  the  counterfeit  note  according  to  its  tenor,  and  contain  no  aver- 
ment  of  its  loss  or  destruction,  the  production  of  the  note  may  be  dispensed  with,  upon 
proof  that  the  same  has  been  mutilated  and  destroyed  by  the  defendant,  and  other  evidence 
of  its  contents  may  be  admitted;  State  V.  Potts,  4  Halst.  26."  So  it  was  said  in  another 
case,  where  the  note  was  described  as  made  on  the  day  of  May,  and  t!ie  proof  was  that 
the  forged  note  was  dated  on  a  particular  day,  a  conviction  would  be  sustained  notwithstand- 
ing  the  variance,  when  a  satisfiietory  reason  for  the  omission  of  a  more  particular  descrip- 
tion is  given  in  the  indictment;  People  v.  Badgely,  16  Wend.  53.  It  has  been  ruled, 
however,  that  upon  a  rule  to  show  cause,  the  court  will  not  order  an  attorney  of  the  court 
to  deliver  to  the  state  attorney  for  the  inspection  of  the  grand  jury,  promissory  notes  sug- 
gested to  have  been  forged,  which  had  been  delivered  to  the  attorney  in  the  common  course 
of  business  by  his  client  suspected  of  committing  the  forgery;  State  v.  Squires,  1  Tyler's 
Vt.  R.  p.  147.  Where  a  forged  paper  is  passed  by  a  prisoner,  bearing  date  in  1828,  and 
immediately  after,  w'ith  the  knowledge  of  the  holder,  the  prisoner  alters  the  date  to  1827, 
and  the  indictment  set  forth  its  tenor,  and  describes  it  as  dated  in  1827,  it  was  held  that 
the  paper  was  proper  evidence  to  go  to  the  jury  in  support  of  the  indictment,  notwithstand- 
ing the  proof  that  it  bore  date  in  182S,  when  passed;  Hoffman  v.  Com.,  6  Rand.  685. 
Whether  it  be  necessary  to  set  cut  the  whole  of  the  forged  writing. 

•'  In  the  short  report  of  .Smith's  case,  in  the  first  volume  of  Salkeld,  Salk.  342,  Pasch.  2 
Ann,  it  is  stated,  that  the  defendant  was  indicted  for  forging  a  deed  of  assignment  of  a 
lease,  signed  with  the  mark  of  one  Goddard,  ciijus  tenor  sequitur,  but  set  not  down  the 
mark  as  in  the  assignment  ;  it  was  objected  that  without  the  mark  it  could  be  no  forgery, 
and  the  objection  was  overruled.  But  this  is  a  very  loose  report  of  tlic  case,  which 
appears  to  be  the  same  with  tiiat  rcjiorted  in  the  third  volume  of  Salkeld,  and  by  Ld.  Ray- 
mond, under  the  title  of  the  C^uccn  v.  Goddard,  in  3  Salk.  171  ;  Trin.  2  Ann  ;  R.  v.  God- 
dard Pt  al,  Ld.  Raym.  920;  R.  v.  Goddard  and  Carlton  ;  according  to  which  tiie  defendant 
was  indicted  for  forging  an  assignment  of  a  lease,  and  the  tenor  was  set  out;  at  the  bottom 
of  the  assignment  was  the  mark  of  tiie  assignor,  but  no  mark  appeared  upon  the  postea; 
and  the  whole  court  held,  that  since,  by  tiie  statute  of  frauds,  an  assignment  must  be 
signed,  the  wantoftiic  mark  of  the  defendant  upon  the  [)ostea,wa8  a  fatal  defect;  but  as  another 
indictment  had  been  found  against  tiie  defendant,  the  court  gave  no  judgment,  but  ruled  that 
tiie  defendant  sliould  |)lead  to  the  signing.  But  Ld.  Holt  lield,tiiat  if  tiie  indictment  had  been 
for  forging  a  deed  of  assignment  (Mr.  East,  in  his  Pleas  of  tiie  Crown  776,  cites  Salk.  342,  and 
«|Ucstions  this  point),  and  the  deed  had  been  set  forth  without  any  mark  or  signature,  that 
might  have  been  good,  because  signing  is  not  necessary  to  a  deed;  for  in  former  times  tiiey 
were  scaled  only,  and  not  signed  ;  Salk.  342;  Pascli.  2  Ann."  Wiiere  tlie  instrument  forged 
was  a  bond,  purporting  to  he  attested  liy  one  .\.  B  ,  and  tlie  iiidietmCnt  charged  tiiat  tlic  dcti;nd- 
ant  "wittingly  and  willingly  did  forge  and  cause  to  be  forged  a  certain  paper  writing,  pur- 
porting to  1)0  a  bond,  and  to  lie  signed  by  one  C.  i).,  with  tiie  name  of  him  tiic  said  C.  D.,  and 
to  be  bcalcd  w-,th  tiic  seal  of  the  said  C.  D.;  and  the  tenor  of  the  bond,  witli  a  subscribing  wit- 


FORGERY.  1 33 

ness  was  set  forth,  but  did  not  cliargc  tliat  the  bond  purported  to  be  atte<;ted  by  one  A.  B  ,  a 
motion  to  arrest  the  judgment  on  this  account  was  overruled,  on  the  ground  that  notliing  need 
be  averred  in  tlie  indictment  wiiich  is  not  necessary  to  constitute  the  otience  charged.  It  is 
not  necess-iry,  it  was  said,  that  there  should  be  a  subscribing  witness  to  a  bond,  and  if  there 
be  one,  it  is  not  his  signature,  but  the  signing,  sealing  and  delivery  by  the  obligor,  that 
contitutes  the  instrument  a  deed;  State  v.  Ballard,  2  Murph.  1«6.  And  it  seems,  in  all 
cases,  to  be  sufficient  to  set  out  that  part  of  a  written  docu:nent,  which  comprehends  the 
particular  instrument  forged,  though  connected  with  other  matter.  Thus,  in  an  indict- 
ment, for  publishing  a  forged  receipt /or  money,  the  receipt  alone  was  set  forth,  as  follows : 
"  18th  March,  173.3,  received  the  contents  above,  by  nie,  Stephen  Withers;"  and,  upon  its 
appearing  in  evidence,  that  the  above  was  forged  at  the  bottom  of  a  certain  account,  it  was 
objected,  that  the  account  itself  should  have  been  set  forth,  for  otherwise,  it  would  not 
appear  that  it  was  a  receipt  for  money.  But  all  the  judges  held,  the  indictment  to  be  suf- 
ficent;  for  it  was  laid  lo  be  a  forged  receipt  for  money,  under  the  hand  of  S.  VV.,  for  £1  4s., 
and  the  bill  itself  was  only  evidence  to  make  out  that  charge;  R.  v.  Testick,  1  East  181; 
East  P.  C.  925.  The  number  of  a  bank  bill,  its  vignettes,  mottoes  and  devices,  and  the 
words  and  figures  in  the  margin,  need  not  be  set  out  in  the  indictment.  It  is  enough  to 
Bet  forth  what  constitutes  the  contract  of  the  bill;  but  that  must  be  done  truly  and  pre- 
cisely; Com.  ».  Stow,  1  Mass.  54;  Com.  v.  Bailey,  1  Mass.  62;  State  v.  Carr,  5  N.  Hamp. 
371;  State  v.  Franklin,  3  Johns.  Cas.  299;  Com.  w.  Searle,  2  Binn.  332;  Com.  o.  Stevens,  I 
Mass.  203.  On  the  trial  of  an  indictment  for  passing  a  counterfeit  bank  note,  the  prisoner 
moved  to  exclude  the  note  produced  from  going  in  evidence  to  the  jury,  on  the  ground  that 
the  name  of  one  of  the  firm  of  engravers,  set  out  in  the  description  of  the  note  in  the  in- 
dictment, did  not  appear  on  the  note  produced;  the  attorney  for  the  commonwealth  proved 
that  when  he  drew  the  indictment,  he  had  been  able  to  make  out  the  name  on  the  note  from 
his  knowledge  that  one  of  the  firm  of  engravers  bore  that  name,  though  he  could  not  say 
he  would  have  been  able  to  do  so  without  the  knowledge  of  the  fact,  but  that  the  word  has 
since  become  indistinct,  he  supposed,  by  handling  the  note;  the  court  below  thereupon 
overruled  the  motion  to  e.tciudc,  and  permitted  evidence  to  be  given  of  the  note  thus  pro- 
duced. It  was  held  by  the  General  Court  that  it  was  right  for  the  court  below  to  do  so; 
Buckland  v.  Com.,  8  Leigh  732. 

2.  How  the  forged  instrument  should  be  shown  lo  be  of  the  kind  prohibited. 

It  must  invariably  be  shown  on  the  tace  of  tlie  indictment,  by  proper  averments,  that 
the  instrument  forged  is  of  the  particular  kind  prohibited,  in  respect  to  which  an  indict- 
ment lies;  State  v.  Jones,  1  M'M.  236;  VVh.  C.  L.  83,  84,  160,  161,  345. 

"A  forged  instrument  cannot  in  strictness  be  called  by  the  name  of  the  real  instrument 
■which  it  assumes  to  be;  an  instrument,  purporting  to  be  a  bond  or  writing  obligatory,  is 
not  such,  for  no  one  is  bound  by  it;  and  a  forged  writing,  purporting  to  be  a  will,  ought  not 
in  strictness  to  be  called  a  will,  for  it  is  not  so  in  any  sense,  and  can  have  no  legal  ope- 
ration whatever;"  Stark.  C.  P.  113. 

"  But  many  statutes  describing  the  offence  of  forgery,  use  the  words,  'and  if  any  person 
shall  forge  any  will,  or  bond,  22  Geo.  II.  c.  25,  or  writing  obligatory,  i.yc.;'  and,  therefore,  it 
may  be  averred  in  the  indictment,  that  the  defendant  forged  the  will;  R.  v.  Birch  and  Mar- 
tin, Leach  92 ;  East  P.  C.  980 ;  bond,  or  writing  obligatory ;  Dunnett's  case,  East  P.  C. 
935.  But  it  is  in  all  cases  proper,  and  seemingly  more  correct,  to  aver,  that  the  defendant 
forged  and  counterfeited  a  certain  paper  writing  purporting  to  be  the  last  will  {or  other  in- 
strument whose  forgery  is  penal).  In  the  case  of  the  King  v.  Birch  and  Martin,  it  was  so 
averred,  and  the  judges  held,  that  although  the  statute  uses  the  words,  'shall  forge  a  will,' 
it  was  sufficient  to  lay  it  either  way  ;  R.  ».  Birch  and  Martin,  Leach  92;  East  P.  C.  980; 
2  Bl.  R.  790.  And,  therefore,  in  general,  if  it  can  be  collected  from  the  forged  writing  it- 
self, that  it  assumes  to  be  a  bond,  iStc,  it  may  be  averred  in  the  indictment,  either  that  the 
defendant  forged  a  certain  bond,  or  that  he  forged  a  certain  writing  purporting  to  be  a 
bond.  Thus,  in  Taylor's  case,  R.  v.  Taylor,  Leach  2,55;  East  P.  C.  977  ;  the  defendant 
was  charged  with  forging  a  receipt  for  the  sum  of  £20,  as  foUowetii,  '  Re'd.  R.  Wilson.' 
And  in  Testick's  case,  1  East  181,  the  tenor  set  out  was,  '  Received  the  contents  above, 
by  me,  William  Withers,'  and  this  was  holden  lo  be  properly  described  as  a  receipt.  In 
fact  in  such  case  the  very  terms  of  the  instrument  showed  it  to  be  a  receipt. 

"  The  purport  of  a  writing  is  that  which  appears  on  the  face  of  that  writing;  R.  v.  Gil- 
christ, Leach  753;  if,  therefore,  the  forged  writing  assumes  in  terms  to  be  a  will,  bond  or 
receipt,  it  may  be  described  a.spurporting  to  be  a  will,  bond  or  receipt.  But  in  alleging  the 
purport  of  a  forged  writing,  great  caution  is  necessary;  for  unless  it  can  be  collected 
plainly  from  the  terms  of  the  writing  set  forth,  that  it  is  in  form  and  assumes  to  be  that 
particular  instrument  which,  accordmg  to  the  allegation,  it  purports  to  be,  the  indictment 
will  be  vicious ;  R.  v.  Hunter,  R.  &,  R.  510  ;  R.  v.  Birkett,  id.  251.  Thus  m  William  Jones' 
12 


134  OFFENCES  AGAINST   PROPERTY. 

cusc,  Leacli  243;  East  P.  C.  883;  Dong.  302;  the  indictment  alleo^ed  '  purporting^  to  hp  a 
bank  note,' tlie  writing  set  forth  was  as  follows:  'No.  F.  94G — 1  proniise  to  pay  J  oh  ti 
Wilson,  esquire,  or  bearer,  ten  pounds,  London,  March  4th,  1776,  for  self  and  company  of 
my  bank  in  England,  entered,  S.  Jones.'  And  the  court  were  of  opinion  that  the  paper 
writing  did  notpurport  to  be  a  bank  note,  and  therefore  that  the  indictment  was  repugnant. 
So  an  indictment  for  forging  a  bill  of  exchange,  as  purporting  to  be  directed  to  John  Xing 
b  V  the  name  and  addition  of  John  Ring,  esq.,  was  for  the  same  reason  holden  to  be  vicious ; 
R.  V.  Jeremiah  Reading,  Leach  672.  The  same  was  holden  of  an  indictment,  which 
described  the  subscription  C.  Oliver  as  purporting  to  be  the  name  of  Christopher  Oliver; 
R.  V.  Reeves,  Leach  933.  The  objection  was  at  first  overruled  by  Heath  and  Lawrence 
Js.,  and  Thomson  B.,  who  thought  that  there  was  a  shade  of  difference  between  this  case 
and  that  of  Gilchrist;  and  it  does  not  appear  what  the  ultimate  opinion  was.  In  Lovell's 
case.  East  P.  C.  990,  Leach  282,  the  indictment  ran  thus,  'purporting  to  be  directed  to 
Messrs.  Drummond  and  Co,  Charing  Cross,'  by  the  name  of  iVlr.  Drummond,  and  the  in- 
dictment was  held  to  be  good,  but  it  does  not  appear  that  the  objection  was  taken.  An  in- 
dictment for  uttering  as  true  a  forged  promissory  note,  purporting  to  be  made  by  A.,  pay- 
able to  B.,  or  order,  is  proved  by  evidence  of  the  uttering  of  such  note  with  the  endorse- 
ment of  B.'sname  on  tlie  back  thereof;  Com.  v.  Adams,  7  Met.  50. 

"  In  Gilchrist's  case,  Leach  753  ;  East  P.  C.  982 ;  the  indictment  charged  the  defendant 
with  forging  a  paper  writing,  &c.,  purporting  to  have  been  signed  by  Thomas  Exon,  clerk, 
and  to  be  directed  to  George  Lord  Kiiinuiid,WiUiam  Morland,  and  Tiiomas  Hammersley, 
of,  &c.,  bankers  and  partners,  by  the  name  and  description  of  Messrs.  Rawson,  Morland  and 
Hammersley  ;  the  tenor  of  the  bill  was  then  set  out  as  follows  :  '  Messrs.  Rawson,  Mor- 
land and  Hammersley,  please  to  pay,  &c.,  (signed),  T.  Exon  ;'  and  the  indictment  was  by 
the  ten  judges  present  at  the  conference,  holden  to  be  repugnant  and  defective,  for  it 
could  not  purport  to  be  directed  to  Lord  Kinnaird,  since  his  name  did  not  appear  upon 
the  bill. 

"  And  with  respect  to  the  word  pvrpnrt,  it  is  to  be  observed  generally,  that  its  use  is  to 
show  that  the  forged  writing  falls  within  the  prohibited  description  ;  and,  therefore,  no 
other  deseri|>tion  should  be  given  under  the  word  purport,  except  of  the  particular  nature 
of  the  forged  writing,  as  that  it  purports  to  be  a  bond,  a  bill  of  exchange,  a  bank  note,  or 
the  like.  Any  further  description  is  highly  objectionable,  since  it  is  unnecessary,  and 
exposes  the  record  to  great  danger  from  variance.  See  Mr.  Justice  Buller's  observations, 
R.  V.  Gilchrist,  Leach  753. 

"  And  the  same  objection  applies  to  giving  any  other  description  of  the  written  instrument, 
(whose  tenor  is  afterwards  set  forth),  beyond  that  of  its  general  nature. 

"  Tfie  defendant  was  indicted  for  forging  and  uttering  a  bill  of  exchange,  requiring,  &.C., 
and  signed  by  Henry  Hutchinson,  for,  &.c.  Upon  the  trial,  the  prosecutor  proved,  that  the 
signature  Henry  Hutchinson  was  forged  ;  it  was  then  objected  that  the  indictment  averring 
it  to  have  been  signed  by  him,  was  disproved  ;  and  so  the  judges  held,  upon  reference  to 
them  after  conviction  ;  East  P.  C.  985.  And  an  indictment  will  be  delective,  if  it  allege, 
afler  describing  the  forged  writing,  'by  which  A.,  is  bound  to  B.;'  for  since  it  is  a 
forgery,  A.  could  not  be  bound  by  it;    Bac.  Abr.  tit.  Ind.  556."  Stark.  C.  P.  117. 

VVhere  a  bill  of  parcels  of  this  tenor,  viz.:  '  Mr.  J.  L.  bought  of  E.  and  O. — the  above 
charged  to  G.  C.,'  the  purchaser,  J,  L.  added  these  words,  'by  order  of  C.  C. :'  It  was 
held,  that  the  addition  amounted  to  an  acquittance  or  discharge,  and  was  a  forgery  within 
the  Massachusetts  statute  ;  Com.  v.  Ladd,  15  Mass.  526.  A  bill  issued  by  a  bank  in  another 
state,  is  a  promissory  note  under  section  third  of  the  Mass.  Rev.  Stat.  chap.  127;  Com. 
V.  Ripley,  Tiiacher's  C'.  C.  67. 

"An  indictment  charged  the  defendant  with  forging  a  bond  and  writing  obligatory.  The 
statute  upon  which  it  was  founded,  mentions  bond  and  also  writing  obligatory.  The  in- 
strument set  forth  purported  to  be  a  bond,  but  the  judge  held,  that  it  was  properly 
described  ;  R.  v.  Dunnett,  East  P.  (-.  985.  For  a  bond  is  a  writing  obligatory,  and  at  all 
events,  semlile :  the  subsequent  description  would  be  but  surplusage."    Stark.  C.  P.  117. 

An  indictment  charging  the  forging  of  'a  certain  bond,'  instead  of  a  certain  paper 
writing  purporting  to  be  a  l)oiid,  is  |)roper  ;  State  v.  Gardiner,  1  Iredell  27. 

"  In  Bigg's  case,  the  prisoner  was  charged  with  erasing  an  endorsement  on  a  bank  note; 
3  P.  Wms.  Sti.;  it  turned  out  in  evidence,  that  the;  inscri|)tion  charged  to  have  been  erased, 
had  been  written,  according  to  the  custom  of  the;  bank,  uj)on  the  inside  and  face  of  the 
bill.  'F'lic  jury  found  csp(;cially,  thai  an  inseriplion  so  written  was  commonly  called  an 
endiirsement,  and  a  iitaiorily  of  the  judges  held,  that  the  description  was  correct;"  Stark. 
C.  P.  117. 

An  order  on  the  cishier  of  the  Bank  of  the  United  States,  is  evidence  in  support  of  an 
indictnxTil  for  for^jing  an  order  on  the  cashier  of  the  corporation  of  the  Bank  of  the 
United  Slates;   U.  S.  v.  Hinman,  1  Bald.  292. 


FORGERY.  135 

Instruments  of  other  specific  denominations,  may,  it  seems,  be  described  as  warrants  or 
orders,  if  they  be  in  eifect  such  ;  Locketl's  case.  East  P.  C.  940;  Leach  110;  R.  v.  Shcp- 
pard.  Leach  265;  East  P.  C.  944.  And  a  bill  of  exchange,  it  has  been  held,  may  be  laid 
as  an  order  for  tlie  payment  of  money;  VVilloughby's  case.  East  P.  C.  944.  "  Where  the 
forced  instrument  is  actually  witliin  the  meaning  of  the  statute  on  wliich  you  intend 
framing  your  indictment,"  says  Mr.  Archbold,  C.  P.  357,  "  but  does  not  sufficiently  appear 
to  be  so  on  the  face  of  it,  you  must,  if  the  instrument  be  set  out,  not  only  set  out  a  literal 
copy  of  it  in  the  indictment,  but  must  also  add  such  averments  of  extrinsic  facts  as  may 
be  necessary  to  make  it  appear  upon  the  face  of  the  record,  that  the  forged  instrument  is 
one  of  those  intended  by  and  described  in  the  statute.  Thus,  for  instance,  where,  by  the 
usage  of  a  public  office,  the  bare  signature  of  a  party  upon  a  navy  bill  operated  as  a  re- 
ceipt, an  indictment  for  forging  such  a  receipt,  setting  forth  the  navy  bill  and  endorse- 
ment, and  charging  the  defendant  with  having  forged  'a  certain  receipt  of  money,'  to  wit, 
the  sum  of  twenty-five  pounds,  mentioned  and  contained  in  the  said  paper  called  a  navy 
bill,  which  forged  leceipt  was  as  follows :  that  is  to  say — 'William  Tliornton,  William 
Hunter,'  "  was  holden  bad,  because  it  did  not  show,  by  prof)er  averments,  that  these  signa- 
tuies  imported  a  receipt;  R.  v.  Hunter,  2  Leach  624  ;  2  East  P.  C.  928.  So,  where  an 
indictment  charged  the  defendant  with  forging  a  receipt  in  the  iiandwriting  of  Henry 
Hargreaves,  as  thus: — "Received,  H.  H.,"  it  was  liolden  that  the  indictment  was  bad,  be- 
cause there  was  nothing  to  show  what  H.  H.  meant;  R.  v.  Barton,  1  ;\lood.  C.  C  141  ;" 
see  R.  V.  Testick,  1  East  181,  n. ;  ante,  p.  133  ;  (see  Arclibold's  C.  P.  p.  46).  So  the  words, 
"settled,  Sam.  Hughes,"  written  at  the  foot  of  a  bill  of  parcels,  were  held  of  themselves  to 
import  a  receipt  of  acquittance,  and  that  no  averment  was  necessary  that  tlie  word  "set. 
tied"  meant  a  receipt  or  acquittance;  R.  v.  IMartin,  1  Mood.  C.  C.  483;  7  C.  &  P.  549  ; 
overruling  R.  v.  Thompson,  2  Leach  810.  And  see  R.  v.  Houseman,  8  C.  &  P.  180;  R. 
V.  V'auglian,  id.  216;  Reg.  v.  Boardman,  2  M.  &,  Rob.  147." 

At  common  law,  to  constitute  forgery,  the  intent  to  defraud  must  either  be  apparent 
from  the  false  making,  or  become  so  by  extrinsic  facts.  Therefore  an  indictment,  which 
charged  the  false  making  to  have  been  in  the  alteration  of  an  order,  given  by  the  defendant, 
vvithout  charging  that  the  alteration  was  made  after  it  was  circulated  and  had  been  taken 
up  by  him,  was  held  to  be  fatally  erroneous;  State  v.  Greenlee,  1  Dev.  523.  For  the  same 
reason,  an  indictment  for  forging  a  deed  must  aver  tiiat  it  was  sealed  ;  3  Keb.  388  ;  3  Inst. 
169  ;  Smith's  case,  3  Salk.  171 ;  though  see  Pa.  v.  Misner,  Add.  R.  44. 

"An  indictment  for  forging  an  order  for  the  delivery  of  goods,  must  show  that  the  person 
whose  name  is  subscribed,  had  authority  to  make  such  an  order;  East  P.  C.  958  ;  2  Leach, 
•id  ed.  611.  But  it  is  sufficient,  if  the  order  purport  that  the  party  sending  it  had  such 
authority,  although,  in  fact,  he  had  not ;  Fost.  119  ;  East  P.  C.  940.  And  it  must,  for  the 
same  reason,  appear  that  the  person  to  whom  the  order  is  directed,  had  possession  of  the 
goods."    Stark.  C.  P.  119. 

An  indictment  for  forging  an  acquittance  need  not  allege  that  it  was  presented,  or 
delivered  to  any  person  as  a  genuine  acquittance  for  goods  delivered,  and  in  consideration 
thereof;  Com.  v.  Ladd,  15  Mass.  526. 

"And  further  it  has  been  holden,  that  if  the  instrument,  as  stated  with  proper  averments 
upon  the  record,  be  such  as  if  genuine  would  be  illegal,  the  indictment  will  be  vicious  and 
ineffi?ctual ;  and  tlierefore,  in  the  case  of  the  King  v.  Moffiit,  Leach  483,  for  forging  a  bill 
of  exchange  for  the  payment  of  three  guineas,  without  specifying  the  payee's  place  of 
abode,  the  judges  were  of  opinion,  that  the  forgery  did  not  amount  to  a  capital  offence  ; 
since,  by  the  stats.  15  Geo.  III.  c.  51,  and  17  Geo.  III.  e.  30,  made  jjerpetual  by  27  Geo.  III. 
c.  16,  the  bill  of  exchange,  if  read,  would  not  have  been  valid;  Wall's  case,  East  P.  C.  953. 

"  And  in  Smith's  case,  3  Salk.  371,  above  alluded  to,  the  court  were  of  opinion,  that  an 
indictment  for  forging  an  assignment  would  be  vicious,  unless  it  showed  tliat  the  assign- 
ment was  signed.  77(6  distinction  seems  to  be  tins,  where  the  instrument  appears  to  bo 
valid,  an  indictment  may  be  maintained,  although  from  some  collateral  defect,  that  instru- 
ment, if  genuine,  could  never  legally  have  been  put  in  use;  otherwise,  where  the  delect  is 
apparent  on  the  face  of  the  instrument;  per  Eyre,  J.  R.  v.  Jones  and  Palmer,  East  P.  C. 
991  ;  Leach  405.  Hence  an  indictment  has  been  holden  to  be  maintainable  tor  forging  a 
conveyance,  though  the  estate  was  described  by  the  wrong  name;  Japhet  Crooke's  case, 
Str.  901;  Fitzg.  57;  Masterman's  notes;  for  forging  a  protection  in  the  name  of  one  as 
member  of  parliament,  who  was  not  so;  R.  ».  Deakins,  1  Sid.  142;  for  forging  and  pub- 
lishing a  writing  as  the  last  will  of  a  person  still  living;  R.  ».  Murphy,  10  St.  Tr.  183; 
R.  V.  Sterling,  Leach  117;  Cogan's  case,  2  Leach  503;  for  forging  an  order  for  the  pay- 
ment of  a  seaman's  prize  money,  thougli  in  fact  the  seaman  was,  at  the  time  the  note  bore 
(lite,  in  a  situation  which  rendered  the  order  invalid  under  the  stat. ;  R.  v.  .M'Intosh,  East 
P.  C.  956;  32  Geo.  III.  c.  34,  s,  2;  and  for  forging  a  name  to  an  assignment  of  a  bond, 
tliough  the  bond  liave  no  seal;  Pa.  v.  Misner,   Add.  44.     The  uttering  and  publishing  a 


13G  OFFENCES    AGAINST    PROPERTY. 

promissory  note  with  forged  endorsements  upon  it,  is  an  offence  within  the  statute  against 
forg-ery,  although  the  passing  of  the  note  is  accompanied  with  communications  which 
would  exonerate  the  endorsers  if  the  endorsements  were  genuine;  People  v,  Rathbun,  21 
Wend.  509. 

If,  from  circumstances,  the  jury  can  presume  that  it  was  the  defendant's  intention  to  de- 
fraud J.  N.,  or  if,  in  fact,  J.  N.  might  have  been  defrauded  if  the  forgery  had  succeeded, 
it  is  sufficient  to  satisfy  this  allegation  in  the  indictment;  for,  where  the  intent  to  defraud 
exists  in  the  mind  of  the  defendant,  it  is  sufficient,  though,  from  circumstances  of  which 
he  is  not  apprised,  he  could  not  in  fact  defraud  the  prosecutor;  R.  v.  Holden,  R.  &  R.  154; 
even  thougli  the  party  to  whom  the  forged  instrument  is  uttered,  believes  that  the  defend- 
ant did  not  intend  to  defraud  him;  R.  v.  Sheppard,  R.  &,  R.  169;  see  R.  v.  Harvey,  2  B. 
&C.  261. 

(/)  The  manner  of  averring  intent  generally  has  been  already  examined;  ante,  p.  11. 
In  forging  it  is  sufficient  to  allege  a  general  intention  to  defraud  a  particular  person, 
which  intention  must  he  proved  as  laid ;  Powell's  case.  Leach  90;  Elsworth's  case.  East 
P.  C.  9«6;  and  see  East  P.  C.  988;  People  v.  Rathbun,  21  Wend.  509;  Com.  v.  Good- 
enough,  Thacher's  C.  C.  132 ;  State  v.  Odcl,  2  Tr.  Con.  Rep.  S.  C.  758 ;  Rose.  Cr.  Ev.  400; 
3  Brevard  552  ;  State  v.  Greenlee,  1  Dev.  523.  It  is  not  necessary,  however,  to  allege  the 
intention  to  defraud;  where  the  statute  upon  which  such  indictment  is  founded,  does  not 
contain  these  terms,  sueli  intention  is  embraced  in  the  words  "falsely  and  fraudulently;" 
Stale  V.  Calvin,  &c.,  Charlt.  151. 

"  But  it  is  not  essential,  either  in  indictments  for  obtaining  money  under  false  pretences, 
or  in  case  of  forgery,  after  setting  out  the  fal^e  pretences  or  forged  writing,  to  aver  the 
pailicular  means  by  which  the  false  pretences  were  made  available  in  the  one  case,  or  how 
the  forged  writing  was  to  be  made  the  instrument  of  fraud  in  the  other.  Thus  an  indict- 
ment for  causing  and  procuring  a  counterfeit  bank  note  to  be  offered  to  be  passed,  without 
stating  by  whom  or  how  the  accused  caused  and  procured  it  to  be  done,  is  sufficiently 
certain  and  good  ;"  Stark.  C.  P.  122  ;  see  also  Brown  v.  Com.,  2  Leigh  769. 

"Thus,  in  the  case  of  R.  ».  Young,  3  T.  R.  176,  above  referred  to,  after  stating  the  false 
pretence ;  namely,  a  wager,  which  was  pretended  to  have  been  betted  upon  a  foot-race,  the 
indictment  averred  that  the  defendant,  under  colour  and  pretence  of  having  made  the  bet, 
obtained  fronr  the  prosecutor  the  sum  of  20  guineas,  as  a  part  of  such  pretended  debt, 
with  intent  to  defraud  and  cheat  him  thereof,  without  stating  by  what  particular  induce- 
ment he  obtained  the  money.  And  in  tlie  case  of  forgery,  it  is  sufficient  to  aver  gene- 
rally, that  the  defendant  intended  to  defraud  a  particular  person,  without  showing  upon 
the  record  how  he  intended  to  do  so;  Powell's  case.  Leach  90;  East  P. C.  989  ;  Elsworth's 
case ;  Crook's  case,  P.  C.  992 ;  Stark.  C.  P.  122. 

The  indictment  is  good  if  it  set  forth  the  instrument  alleged  to  have  been  forged,  aver- 
ring it  to  have  been  falsely  made,  with  the  intent  to  injure  or  defraud  some  person  or 
body  corporate,  provided  the  instrument  be  such  as  on  its  face  to  show  that  the  rights 
or  property  of  such  person  may  thereby  be  injured  or  affected  ;  it  is  not  necessary  that  the 
facts  and  circumstances  of  the  ease  showing  the  intent,  should  be  specially  set  forth  in 
the  indictment;  it  is  enough  that  they  be  given  in  evidence  on  the  trial.  Thus,  where 
the  defendant  was  indicted  for  forging  an  instrument  purporting  to  be  a  request  frora 
the  cashier  of  a  bank  in  Kentucky  to  the  cashier  of  a  bank  in  New  York,  to  deliver 
to  engravers  the  plates  of  the  bank  for  the  purpose  of  having  new  impressions  taken,  it 
was  held  that  it  was  not  necessary  to  allege  either  that  there  was  such  a  bank  in  Ken- 
tucky, or  that  the  person  who  purported  to  be  the  writer  of  the  request  was  cashier  thereof, 
and  had  authority  to  make  such  request,  or  that  there  were  such  plates  in  existence,  and 
in  the  possession  of  or  under  the  control  of  the  cashier  to  whom  the  writing  was  ad- 
dressed ;  all  this  being  matter  of  evidence  and  not  necessary  to  be  set  forth  in  the  indict- 
ment.  Extrinsic  facts  are  necessary  to  be  stated  only,  when  the  operation  of  the  instru- 
ment upon  the  rights  or  property  of  another  is  not  manifest  or  probable  from  the  face  of 
tiie  writing.  It  was  further  held,  that  it  was  not  necessary  to  aver  in  the  indictment  that 
the  bank  of  Kentucky  was  a  corporation  duly  incorporated ;  tliat  it  was  enough  to  allege 
that  the  instrument  set  forth  was  falsely  made,  with  the  intent  to  injure  and  defraud 
the  bank;  and  that  under  sucii  allegation  an  exemi)lifieation  of  the  act  of  incorporation 
was  admissible  in  evidence;  People  v.  Stearns,  21  Wend.  409. 

Where  tiic  intent  is  charged  to  be  to  defraud  an  incorporated  bank,  and  its  corporate  name 
is  set  forth,  it  is  sufficient  if  it  appears  to  be  an  incorporated  bank  within  the  state;  People 
V.  Peabody,  25  Wend.  472;  People  v.  Davis,  21  Wend.  309;  State  ».  Jones,  1  M'M.  236; 
('om.  V.  Smith,  fi  S.  &  R.  5G^^.  It  seems  that  all  the  partners  need  not  set  out  in  averring 
the  intent  to  defraud.  Tlius,  where  the  first  count  charged  the  offence  to  have  been 
committed  with  intent  to  defraud  D.  L.  and  I).  L.  Jr.;  the  second  count  stated  the  offence 
to  have  been  committed  with  intent  to  defraud  the  president  and  directors  of  said  com- 


FORGER?.  137 

Fii'st  count.  Forging  at  common  law,  a  certificate  of  an  officer  of  the 
American  army,  in  \111,  to  the  effect  that  he  had  received  certain 
stores,  ^•c.{h) 

That  C.  S.,  late  of  the  county  aforesaid,  yeoman,  on,  &c.,  and  long 
before  and  since,  was  a  clerk  to  the  department  of  the  commissary- 
general  of  military  stores  in  the  armies  of  the  United  States  of  Ame- 
rica, and  entrusted  and  employed  by  colonel  B.  F.,  the  commissary- 
general  of  military  stores  in  the  armies  aforesaid,  and  by  the  honour- 
able continental  congress,  to  make  payments  and  take  receipts,  bills 
of  parcels  and  other  vouchers  for  military  stores  and  for  divers  arti- 
cles necessary  and  fitting  in  the  preparation  of  military  stores  pur- 
chased for  the  use  of  the  armies  aforesaid,  and  to  keep  the  accounts 
thereof  And  the  jurors  aforesaid  upon  their  oaths  and  affirmations 
aforesaid,  do  further  present,  that  the  same  C.  S.,  on,  &c.,  at  the  City 
of  Philadelphia,  in  the  county  aforesaid,  contriving  and  intending 
falsely  and  fraudulently  to  deceive  and  defraud  the  United  States 
aforesaid,  with  force  and  arms,  falsely,  wickedly  and  unlawfully  did 
make,  forge  and  counterfeit,  and  cause  to  be  made,  forged  and  coun- 
terfeited, a  certain  writing  piu'porting  to  be  a  receipt  for  one  thousand 
and  twenty  pounds  and  fifteen  shillings,  and  purporting  to  be  signed 
in  the  name  of  one  A.  F.,  in  the  words  and  figures  following,  to  wit, 
"  3.  Received  1st  July,  1777,  of  colonel  B.  F.,  C.  G.  U.  S.,  one  thous- 
and and  twenty  pounds,  fifteen  shillings  for  820  bayonet  belts,  and 
920  cartouch  boxes  for  the  use  of  the  army. 

"—£1020  15—  A.  F." 

to  the  evil  example  of  all  others  in  like  case  off'ending,  to  the  great 
damage  of  the  United  States,  and  against,  &c.  [Conclude  as  in  book 
1,  chap.  3). 

Second  count.     Publishing  the  same. 

And  the  jurors  aforesaid,  upon  their  oaths  and  affirmations  afore- 
said, do  further  present,  that  the  said  C.  S.,  contriving  and  intending 
the  said  United  States,  falsely  and  fraudulently  to  deceive  and  de- 
fraud, then  and  there,  with  force  and  arms,  the  said  writing  so  as 
aforesaid  falsely  made  and  counterfeited,  purporting  to  be  a  receipt 
lor  the  sum  of  one  thousand  and  twenty  pounds  and  fifteen  shillings, 

pany ;  the  fourth  count,  &;c.,  with  an  intent  to  defraud  D.  L. ;  the  court,  on  motion  in 
arrest  of  judgment,  held,  that  the  omission  of  one  of  the  partners  in  one  count,  and  of 
two  of  them  in  another,  was  not  fatal ;  for  an  acquittal  on  such  an  indictment,  will  always 
be  a  bar  to  another  prosecution  for  the  same  forgery,  though  laid  with  intent  to  injure 
some  other  person ;  People  v.  Curling,  I  Johns.  R.  320 ;  R.  v.  Hansf)n,  1  C.  &  M.  334. 

The  allegation,  &c.,  "  commonly  called  a  bank  note,  purporting  to  be  a  good  and 
genuine  bank  note  of  one  hundred  dollars,  on  the  bank  of  the  state  of  South  Carolina," 
contains  a  sufficient  averment  of  the  existence  of  such  a  bank  as  the  bank  of  the  state  of 
South  Carolina ;  State  v.  Ward,  2  Hawks  443. 

(0-)  This  averment  is  unnecessary  in  statutory  forgeries,  and  does  not  seem  to  be  re- 
quired at  common  law;  People  v.  Rynders,  12  Wend.  425;  though  in  the  latter  class  of 
indictments,  it  is  more  prudent  to  insert  it. 

(h)  Res.  V.  Swccrs,  1  Dall.  41,  The  objection  taken  to  this  and  the  succeeding  indict- 
ment, that  the  intent  to  defraud  the  United  States  was  vicious,  was  overruled  by  M'Kean 
C.  J,,  and  the  defendant  sentenced.  The  trial,  it  must  be  observed,  was  in  the  Supreme 
Court  of  Pennsylvania. 

12* 


13S  OFFENCES  AGAINST  PROPERTY. 

and  purporting  to  be  signed  in  the  name  of  the  said  A,  F.,  wickedly, 
unlawfully  and  fraudulently  did  publish  and  cause  to  be  published 
as  and  for  a  true  writing  and  receipt  of  the  said  A.  F. ;  which  said 
falsely  forged  and  counterfeited  writing  is  in  the  words  and  figures 
following,  to  wit,  "  3.  Received  1st  July,  1777,  of  colonel  B.  F.,  C.  G. 
U.  S.,  one  thousand  and  twenty  pounds  fifteen  shillings,  for  820  bay- 
onet belts,  and  920  cartouch  boxes  for  the  use  of  the  army. 

.._£  1020  15—  A.  F." 

(lie  the  said  C.  S.,  at  the  time  of  pubhshing  the  said  false  and  coun- 
terfeit writing,  there  by  him  in  form  aforesaid,  well  knowing  the 
said  writing  to  have  been  falsely  forged  and  counterfeited  as  afore- 
said), to  the  evil  example  of  all  others  in  like  case  otfending,  to  the 
great  damage  of  the  said  United  States,  and  against,  &c.  [Conclude 
as  in  book  1,  chap.  3). 

Forgery.  Alterhig  a  certificate  of  an  officer  of  the  American  army  in 
1778,  to  the  effect  he  had  received  for  the  use  of  the  troops  at  Carlisle 
certain  articles  of  clothing.  Offence  laid  at  common  law,  the  intent 
being  to  defraud  the  United  States.{i) 

That  C.  S.,  late  of  the  county  aforesaid,  yeoman,  on,  &c.,  was  a 
deputy  commissary-general  of  military  stores  in  the  armies  of  the 
United  States  of  America,  and  entrusted  and  employed  by  colonel 
B.  F.,  the  commissary-general  of  military  stores  in  the  armies  afore- 
said, and  by  the  honourable  continental  congress,  to  make  pur- 
chases of  military  stores  and  of  divers  other  articles  necessary  and 
fitting  in  the  preparation  of  military  stores,  for  the  use  of  the  armies 
aforesaid,  and  to  make  payments  and  take  receipts,  bills  of  parcels 
and  other  vouchers  therefor.  And  the  jurors  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  say,  and  further  present,  that  the 
said  C.  S,,  on,  &c.,  at  the  City  of  Philadelphia,  in  the  county  aforesaid, 
having  in  his  custody  and  possession  a  certain  bill  of  parcels  or  ac- 
count, with  a  certificate  and  receipt  all  in  writing,  for  a  parcel  or 
quantity  of  flannel  cloth  by  him  purchased  of  one  M.  D.,  for  the  use 
of  the  laboratory  of  the  same  armies,  and  which  said  writing  was  in 
the  words,  figures,  ciphers  and  letters  following — that  is  to  say : 

"U.S.A. 

To  M.  D.,  Dr. 

"  1778,  Feb.  4th.  To  57  &  a  qr.  yds.  flannel,  32*.  6d. 
To  9  yds.  do.      35*. 

To  107  &  3  qr.  yds.    do.     52s.  6d. 


^83 

5 

7 

15 

15 

0 

282 

16 

10 

^381 

17 

5' 

"  I  do  certify,  that  the  above  was  purchased  and  delivered  to  me 
for  the  use  of  the  laboratory  at  Carlisle. 

"I.  C,  Cap.  of  the  Jlrtillery.'' 
And  on  the  back  side  of  which  said  writing  is  endorsed  and  written 

(i)  R.  V.  Sweers,  1  Dall.  41. 


FORGERY.  139 

the  words  following:  "Received  the  within  contents  in  full,M.D."  He 
the  said  C.  S.,  afterwards,  to  wit,  on  the  same  day  and  year  aforesaid,  at 
Philadelphia  aforesaid,  in  the  county  aforesaid,  with  force  and  arms, 
the  said  bill  of  parcels  or  writing,falsely, fraudulently  and  deceitfully  did 
alter  and  cause  to  be  altered,  by  falsely  making,  forging  and  adding 
the  figure  4  to  and  before  the  figure  9,  in  the  second  item  of  the  said 
bill  of  parcels  or  writing,  which  figures  and  letters  did  before  such 
last  mentioned  forgery  import  and  signify  nine  yards,  but  by  reason 
and  means  of  such  last  mentioned  forgery  and  addition  did  become, 
import  and  signify  forty-nine  yards ;  and  also  by  forging  and  altering 
the  figure  1,  in  the  sum  of  the  said  second  item  in  the  bill  of  parcels 
or  writing  aforesaid,  to  the  figure  8  ;  which  figures  did,  before  such 
mentioned  alteration  and  forgery  import  and  signify  fifteen  pounds 
and  fifteen  shillings,  but  by  reason  and  means  of  such  last  mentioned 
forgery  and  alteration,  did  become,  import  and  signify  eighty-five 
pounds  and  fifteen  shillings;  and  also  by  falsely  forging  and  altering 
tlie  figure  3  to  the  figure  4,  and  the  figure  8  to  the  figure  5,  in  the 
sum  total  or  amount  of  the  said  bill  of  parcels  or  writing ;  which 
figures  did  before  such  last  mentioned  forgery  and  alteration  import 
and  signify  three  hundred  and  eighty-one  pounds,  seventeen  shillings 
and  five  pence,  but  by  reason  and  means  of  such  last  mentioned  for- 
gery and  alteration,  did  become,  import  and  signify  four  hundred  and 
fifty-one  pounds,  seventeen  shillings  and  five  pence,  with  intention  to 
defraud  the  United  States  of  America  aforesaid  of  seventy  pounds,  of 
lawful  money  of  Pennsylvania,  to  the  evil  example  of  all  others  in 
like  case  offending,  to  the  great  damage  of  the  said  United  States, 
and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Forgery.     Jlltering  and  defacing  a  certain  registry  and  record,  SfC,  un- 
der the  Pennsylvania  act  of  1700.(y) 

That  H.  R.,  &c.,  at,  &c.,  aforesaid,  on,  &c.,  being  an  evil  disposed 
person,  and  devising,  designing  and  intending  evil  to  the  people 
of  this  commonwealth,  under  the  pretext  of  examining  the  enrol- 
ments, registers  and  records  in  the  office  of  the  surveyor-general  of 
this  commonwealth,  on,  &c.,  aforesaid,  at  the  county  aforesaid,  with 
the  intention  to  defraud  and  deceive  one  G.  R.,  falsely,  deceitfully  and 
corruptly  in  and  on  a  certain  registry  and  record,  then  and  there  being 
and  remaining  as  a  public  record,  in  the  office  of  the  surveyor-general 
of  this  commonwealth,  to  wit,  in  book  F.,  and  on  the  page  of  the  said 
book  numbered  one  hundred  and  ninety-five,  containing  the  list  of 
returns  made  by  him,  the  said  H.  R.,  while  acting  as  deputy-surveyor 
of  the  surveyor-general  of  this  commonwealth,  did  then  and  there 
falsely  alter  and  deface  the  registry  and  records  of  said  office  and  of 
this  commonwealth,  by  a  false  and  corrupt  interlineation  made  in 
writing  and  figures,  as  follows,  to  wit,  in  the  said  book  F.,  and  on  the 
page  of  said  book  numbered  therein  one  hundred  and  ninety-five,  and 

{j)  Ream  v.  Com.,  3  S.  &  R.  207.  The  judgment  of  the  Quarter  Sessions  of  Dauphin 
County,  passing  sentence  on  this  indictment,  was  aiiirmcd  by  the  Supreme  Court, 


140  o^FE^cES  against  property. 

between  the  lines  of  writing  on  said  page,  counted  from  the  upper 
line  of  said  page,  including  the  said  upper  line,  numbers  twenty-three 
and  twenty-four:  "April,  1794.  H.  R.,  in  right  of  S.  S.,  161  acres  and 
95  perches."  To  the  great  damage  of  the  said  G.  R.,  contrary,  &c., 
and  against,  &c.     [Conclude  as  in  book  \,  chap.  3). 

For  forging,  SfC,  a  hill  of  exchange,  an  acceptance  thereof,  and  an  en- 
dorsement thereon.iji) 

That  defendant,  &c.,  feloniously  did  falsely  make,  forge  and  coun- 
terfeit, and  cause  and  procure  to  be  falsely  made,  forged  and  counter- 
feited, and  wiUingly  act  and  assist  in  the  false  making,  forging  and 
counterfeiting  *  certain  bill  of  exchange;  the  tenor  of  which  said 
false,  forged  and  counterfeited  bill  of  exchange,  is  as  follows,  that  is 
to  say : 

"No.  £54.  Is.  Bristol,  America,  17th  Sept.  1797. 

"  Three  months'  after  sight,  pay  to  Messrs.  S.  R.  and  Son,  or  order, 
fifty-four  pounds,  one  shilling,  value  received. 

"ToMr.  R.  G.  A.M." 

"  Old  Change,  London." 
with  intention  to  defraud  A.  S.,  against,  &c.,and  against,  &c.      {Con- 
clude as  in  book  1,  chap.  3). 

Second  count  for  uttering. 

Feloniously  did  utter  and  publish  as  true,  a  certain  false,  forged 
and  counterfeited  bill  of  exchange,  which  said  last  mentioned  false, 
lorged  and  counterfeited  bill  of  exchange,  is  as  follows,  that  is  to  say, 
{set  out  the  bill  as  before),  with  intention  to  defraud  the  said  A.  S., 
he  the  said  A.  B.,  at  the  said  time  he  so  uttered  and  published  the  said 
last  mentioned  false,  forged  and  counterfeited  bill  of  exchange  as 
aforesaid,  then  and  there,  to  wit,  on,  &:c.,  at,  &c.,  well  knowing  the 
same  to  be  false,  forged  and  counterfeited,  against,  &c.,  and  against, 
&c.     {Conclude  as  in  book  1,  chap.  3). 

Third  count,  for  forging  an  acceptance.{!) 

That  the  said  A.  B.,  having  in  his  possession  a  certain  other  bill  of 
exchange,  whose  tenor  follows,  that  is  to  say,  (set  out  the  bill),  *  on, 
&.C.,  with  force  and  arms,  at,  &c.,  feloniously  did  falsely  make,  forge 
and  counterfeit,  and  cause  and  procure  to  be  falsely  made,  forged 
and  counterfeited,  and  willingly  act  and  assist  in  the  false  making, 
forging  and  countcrfcting  on  the  said  last  mentioned  bill  of  exchange, 
*■*  an  acceptance  of  the  said  last  mentioned  bill  of  exchange,  to  the 
tenor  following,  that  is  to  say,  "Accepted  R.  G.,  Nov.  13lh,"  with  in- 
tent to  defraud  the  said  A.  S.,  against,  &c.,  and  against,  &:c.  {Co7i- 
clude  as  in  book  1,  chap.  3). 

Fourth  count  for  uttering  a  forged  acceptance,  as  in  the  last  count  to 
the  *,  and  proceed: 

On  which  said  last  mentioned  bill  of  exchange  was  written  a  cer- 

(jt)  Stark.  C.  P.  455. 

(/)  It  is  usual,  in  a  count  of  this  kind,  first  to  aver  tlic  date,  direction  and  other  circum- 
stances  of  the  bill,  and  then  set  it  out ;  but  the  first  averruents  seem  to  be  superfluous,  and 
the  above  form  is  much  more  concise.  It  does  not  appear  to  be  absolutely  essential  to  set 
out  tlic  whole  of  the  bill,  since  the  acceptance  only  is  alleged  to  have  been  forged.  See 
Stark.C.  r.  p.  112-13. 


FORGERY.  141 

tain  false,  forged  and  counterfeited  acceptance  of  the  said  last  men- 
tioned bill  of  exchange,  whose  tenor  follows,  that  is  to  say,  "Accepted, 
R.  G.,  Nov.  13th,"  on,  &c.,  with  force  and  arms,  at,  &c.,  feloniously 
did  utter  and  publish  as  true,  the  said  last  mentioned  false,  forged 
and  counterfeited  acceptance  of  the  said  last  mentioned  bill  of  ex- 
change, with  intent  to  defraud  the  said  A.  S.,  he  the  said  A.  B.,  at  the 
time  of  uttering  and  publishing  as  true  the  said  last  mentioned  false, 
forged  and  counterfeited  acceptance  of  the  said  last  mentioned  bill  of 
exchange,  then  and  there,  to  wit,  on,  &c.,  at,  &c.,  well  knowing  the  said 
last  mentioned  false,  forged  and  counterfeited  acceptance  to  be  false, 
forged  and  counterfeited,  against,  &c.,  and  against,  &c.  [Conclude 
as  in  book  1,  chap.  3). 

Fifth  count,  for  forging  an  endorsement,  SfC,  as  in  the  third  count  to 
the  *,  and  proceed : 

An  endorsement(m)  of  the  said  last  mentioned  bill  of  exchange, 
whose  tenor  follows,  &c.,  that  is  to  say,  "  S.  R.  and  Son,"  with  intent  to 
defraud,  &c.,  {as  before). 

Sixth  count,  for  publishing  a  forged  endorsement,  SfC. 

{Same  with  that  of  the  fourth  count,  substituting  the  endorse- 
ment and  its  tenor  for  the  acceptance,  and  its  tenor):  against,  &:c., 
and  against,  &:c.     [Conclude  as  in  book  1,  chap.  3). 

For  forgery  at  common  law  in  ante-dating  a  mortgage  deed  with  interest, 
to  take  place  of  a  prior  mortgage.{n) 

That  whereas,  a  certain  M.  N.,  yeoman,  on,  &:c.,  at,  &c,,  was 
seized  in  his  demesne  as  of  fee,  of  and  in,  two  certain  lots  or  pieces 
of  ground,  one  of  them  situate,  lying  and  being  in  Prince  street,  in  the 
Borough  of  Lancaster,  in  Lancaster  County  aforesaid,  containing,  &c.; 
the  other  of  which  said  lots,  situate,  &c.,  and  that  the  said  M.  N.,  the 
same  day  and  year  aforesaid,  at  Lancaster  County  aforesaid,  for  a 
good  and  valuable  consideration,  to  him  the  said  M.  N.,  by  a  certain 
A.  K.,  before  that  time  paid,  did  make  and  execute,  seal  and  deliver, 
to  the  said  A.  K.,  a  certain  indenture  and  deed  of  mortgage,  dated  the 
same  day  and  year  aforesaid,  wherein  and  whereby  the  said  M.  N. 
did  grant,  bargain,  sell,  alien,  release  and  confirm  unto  the  said  A.  K., 
liis  heirs  and  assigns,  all  those  two  adjacent  lots  or  pieces  of  ground, 
before  mentioned  and  described,  situate  on  Prince  street  aforesaid,  in 
the  borough  and  county  aforesaid,  together  with  the  houses  and  out- 
houses, edifices  and  buildings  thereon  erected,  and  all  and  singular 
their  appurtenances,  to  have  and  hold  the  same  to  the  said  A.  K., 
his  heirs  and  assigns  forever,  with  a  proviso  in  the  same  indenture 
contained,  that  if  the  same  M.  N.,  his  heirs,  executors  or  administra- 
tors should,  and  did  well  and  truly  pay,  or  cause  to  be  paid  to  the 
said  A.  K.,  or   his  executors,  administrators,  assigns,  the  sum  of 


(m)  See  Stark.  C.  P.  116-17  ;  R.  v.  Biggs,  3  P.  Wms.  419. 

(«)  This  indictment,  which  was  drawn  in  1763,  is  signed  by  "  Benj.  Chew,  attorney- 
general,"  but  a  note  on  a  manuscript  copy  with  which,  among  oliiers,  I  have  been  very 
kindly  furnished  by  Mr.  Dillingham,  of  this  city,  states  that  it  was  "  settled  by  Edward 
Siiijjpea,  deputy  altoniey-geaeral,"  and  afterwards  chief  justice. 


142  OFFENCES  AGAINST  PROPERTY. 

pounds,  on  the  day  of  together  with  lawful  interest  for 
the  same,  then  that  indenture  to  be  void,  and  the  estate  thereby 
granted  to  cease  and  determine,  [here  recite  the  proof  or  acknowledg- 
ment of  the  deed  and  enrolment^  with  the  day,  place  and  booh), 
as  by  the  said  indenture,  reference  being  thereunto  had,  more  fully 
and  at  large  appears. 

And  that  M.  R.,  of  L.,  in  Lancaster  County  aforesaid,  yeoman,  and 
D.  S.,  of  the  Borough  of  Lancaster,  in  Lancaster  County,  attorney  at 
law,  well  knowing  the  premises,  and  designing  and  fraudulently  in- 
tending the  said  A.  K.,  falsely  and  unlawfully  to  deceive  and  defraud, 
and  with  an  intent  to  destroy,  invalidate  and  render  of  no  effect,  the 
mortgage  deed  aforesaid,  and  to  deprive  the  said  A.  K.,  of  all  benefit 
and  advantage  therefrom,  and  to  lessen  and  destroy  the  security  which 
the  said  A.  K.  had  by  the  said  mortgage  deed,  for  the  payment  of  the 
said  sura  of  pounds,  with  the  interest  thereof,  afterwards,  to  wit, 

the  fourth  day  of  November,  A.  D.  1763, at  Lancaster  County  aforesaid, 
and  within  the  jurisdiction  of  this  court,  with  force  and  arms,  know- 
ingly, subtelly  and  falsely,  did  forge  and  make,  and  cause  to  be 
forged  and  made,  one  false  writing  sealed,  purporting  to  be  an  inden- 
ture of  mortgage  from  the  said  M.  N.  to  the  said  M.  R.,  for  the  two 
lots  of  ground  aforesaid,  before  granted  and  mortgaged  as  aforesaid, 
by  the  said  M.  N.  to  the  said  A,  K.,  and  purporting  to  bear  date  and 
to  have  been  sealed  and  delivered,  by  the  said  M.  N.,  on  the  fourth  day 
of  June,  1763,  which  same  false  and  forged  writing,  contains  the 
matter  following,  to  wit,  this  indenture,  &c.  {setting  forth  the  same), 
as  by  the  said  false  and  forged  indenture  fully  appears. 

And  the  inquest  aforesaid,  do  further  present,  that  the  said  M.  R. 
and  D,  S.,  the  said  fourth  day  of  November,  at  Lancaster  County  afore- 
said, fraudulently  and  deceitfully  designing  to  defraud  and  supplant  the 
said  A.  K.,  with  an  intent  that  the  said  false  and  forged  writing  should 
invalidate,  defeat  and  become  prior  to  the  indenture  of  mortgage 
aforesaid,  of  the  said  M.  N.,  before  that  time  made,  sealed  and 
delivered  to  the  said  A.  K.,  (the  last  mentioned  indenture  of  mortgage 
being  then  and  there  in  full  force,  and  the  moneys  mentioned  in  the 
proviso  aforesaid,  being  unpaid  to  the  said  A.  K.,  his  attorney  or  as- 
signs), the  same  false  and  forged  writing,  did  ante-date  and  cause  to 
be  ante-dated,  and  to  bear  date  on  a  day  prior  to  tlie  sealing  and 
delivery  of  the  indenture  aforesaid, to  the  said  A.  K.,  to  wit, on  the  fourth 
day  of  June  aforesaid,  and  tlie  said  M.  R.  and  D.  S.,  on  the  fourth  day 
of  November  aforesaid,  at  the  county  aforesaid,  falsely,  unlawfully  and 
deceitfully  did  prevail  upon  and  procure  the  aforesaid  M.  N.,  to  exe- 
cute and  acknowledge,  sign,  seal  and  deliver,  as  his  act  and  deed,  the 
same  false  and  forged  writing,  he  the  said  M.  N.,  then  and  there  not 
Icnowing  the  same  false  writing  to  have  been  as  aforesaid  ante- 
dated, but  believing  the  same  to  have  borne  date  on  the  day  of  the  exe- 
cution and  delivery  of  the  same,  to  wit,  on  the  fourth  day  of  November 
aforesaid.  And  the  inquest  &.c.,  do  further  present,  tliat  the  said  iM.  R. 
and  D.S.,  afterwards,  to  wit,  the  same  fourth  day  of  November,  at  Lan- 
caster County  aforesaid,  with  an  intent,  the  said  A.  K.  to  injure,  cheat, 
deceive  and  defraud, and  to  cause  the  aforesaid  false  and  forged  writing, 
to  invalidate,  defeat  and  become  prior  to  the  true,  genuine  and  lawiul 


FORGERY.  1 43 

deed  aforesaid,  made  and  sealed  as  aforesaid,  and  delivered  to  the 
said  A.  K.,  the  same  false,  forged  and  aute-dated  deed,  as  the  true  and 
genuine  deed  of  the  said  M.  N.,  by  him  made,  executed,  sealed  and 
delivered,  on  the  fourth  day  of  June  aforesaid,  falsely,  unlawfully, 
knowingly,  fraudulently  and  deceitfully  did  publish,  and  cause  to  be 
published,  when  in  truth  the  said  M.  R.  and  D.  S.,  then  and  there 
well  knew  the  said  last  mentioned  writing  to  be  false,  forged  and 
ante-dated,  and  not  to  have  been  sealed  and  delivered  by  him  the  said 
M.  N.,  on  the  fourth  day  of  June  aforesaid,  but  on  the  fourth  day  of 
November  aforesaid,  to  the  great  injury  and  deceit  of  the  said  A.  K., 
to  the  evil  example  of  all  others  in  such  case  offending,  and  against, 
&c.     {Conclude  as  in  book  1,  chap.  3). 

At  common  Jaw.     Against  a  member  of  a  dissolved  firm  for  forging  the 
name  of  the  firm  to  a  p'omissory  note. 

That  D.  G.,  late,  &c.,  on,  &c,,  and  after  the  dissolution  of  the  co- 
partnership of  the  said  D.  G.  and  J.  0.  who  had  shortly  before  carried 
on  trade  and  merchandise,  under  the  name  and  firm  of  0.  and  G.  at  &c., 
did  falsely  make,  forge  and  counterfeit  and  did  cause  and  procure  to 
be  falsely  made,  forged  and  counterfeited,  a  certain  prommissory  note, 
for  the  payment  of  money  signed  by  the  said  D.  G,,  with  the  partner- 
ship names  of  0.  and  G.  and  purporting  to  have  been  signed  by  the  said 
D.  G.  with  the  partnership  name  of  0.  and  G.  before  the  said  partner- 
ship was  dissolved,  the  tenor  of  which  promissory  note  is  as  follows, 
"  S5000.  Ninety  days'  after  date  we  prom^ise  to  pay  W.  S.,  or  order, 
five  thousand  dollars,  at  the  State  Bank  at  Elizabeth,  without  defal- 
cation or  discount,  for  merchandise  rec'd,  E.  T,,  30th  December,  1S12, 
0.  and  G.,"  with  intent  to  defraud  the  said  J.  0.,  and  to  render  him 
liable  to  the  payment  of  the  said  sum  of  money  in  the  said  note  men- 
tioned and  made  payable,  contrary,  &:c.{o)  [Conclude  as  in  book  1, 
chap.  3). 

Forging  a  letter  of  attorney  at  common  law. 

That  J.  B.,late  of  the  said  county,  yeoman,  on,  &c,,  with  force  and 
arms,  at  the  county  aforesaid,  falsely,  fraudulently  and  deceitfully 
did  make,  forge  and  counterfeit  a  certain  letter  of  attorney,  purport- 
ing to  be  signed  by  one  T.  R.,  with  the  mark  of  him  the  said  T.  R., 
and  to  be  sealed  and  delivered  by  him  the  said  T.  R.,  the  tenor  of 
which  said  letter  of  attorney  is  as  follows,  {here  recite  letter  of 
attorney,  verbatim  et  literatim),  with  an  intent  to  defraud  the  said 
T.  R,,  against,  &.c.    {Conclude  as  in  book  1,  chap.  3). 

(0)  State  V.  Gustine,2  Southard  744.  Halsey  moved  to  quash  :  1.  For  uncertainty  and 
inconsistency.  2.  Because  the  purport  was  incorrectly  stated,  it  being  stated  to  be  signed 
by  defendant,  with  tiie  partnership  name  of  Ogden  and  Gustin,  whereas  it  did  not  purport 
to  be  signed  by  D.  Gustine,  2  East  982.  3.  Because  partner  before  or  after  dissolution  of 
partnership,  may  sign  partnership  name  for  a  separate  business,  and  not  be  liable  to  the 
pains  of  forgery,  Chetwtwd  answered,  and  referred  to  2  Hawk.  344;  1  Mod.  78;  1  Str. 
234,  241,  266;  1  Salk.  384.  I  Leach  2.39,  410  ;  2Str.  486;  2  Leach  660.  The  court, 
Southard  J.  dissenting,  overruled  the  motion,  and  put  tlie  defendant  to  plead,  &,c. 


144  OFFEXCES    AGAIN'ST    PROPERTY. 

Uttering  a  forged  order  at  common  law. 

That  L.  G.,  late  of  the  said  county,  yeoman,  on  the  tenth  day  of 
November,  1787,  at  the  said  county  and  within  the  jurisdiction  of  this 
court,  having  in  his  possession  a  certain  false,  forged  and  counterfeited 
written  paper,  purporting  to  be  an  order  for  the  payment  of  the  sum 
of  one  pound  and  five  shilUngs,  and  to  be  signed  by  one  G.  B.,  which 
false  and  forged  order  is  in  the  words  and  figures  following,  that  is  to 
say, 

"  Sir.    Please  to  pay  the  bearer  for  cleaning  the  bank. 
"^1.5.0.  G.  B." 

The  same  false,  forged  and  counterfeited  written  paper  or  order, 
for  and  as  a  good,  true  and  genuine  order  for  the  payment  of  the  sum 
aforesaid,  to  G.  C,  esq.,  then  and  there  falsely,  deceitfully  and  fraud- 
ulently did  utter,  publish  and  present  and  deliver  with  an  intent  to 
defraud  the  said  G.  C,  to  his  great  damage,  contrary  &.C.;  and  against, 
&c,  (^Conclude  as  m  book  I,  chap,  3). 

Forgery  of  hill  of  exchange.     First  count,  forging  the  bill{p) 

That  defendant,  on,  &c.,  at,  &c.,  feloniously,  &c.,  did  forge  a  certain 
bill  of  exchange,  which  said  forged  bill  of  exchange  is  as  follows,  that 
is  to  say:  "£50.  Bristol,  25th  March,  1830.  Three  months'  after 
date  pay  to,"  &c.,  &c.,  [setting  out  the  bill  of  exchange  in  words 
and  figures  correctly^  with  intent  to  defraud  one  J.  N.,  against,  &c., 
and  against,  &c.  [Conclude  as  in  book  1,  chap.  3). 
Second  count.     Uttering  the  same. 

That  the  defendant  "did  offer,  utter,  dispose  of  and  put  off  "  a  cer- 
tain other,  &c.,  &c. 

Third  count.     Forging  an  acceptance  on  the  same. 

{If  the  acceptance  be  also  forged,  add  counts  for  it  in  this  form): 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  J.  S.,  afterwards,  to  wit,  on  the  year  and  day  last  afore- 
said, at  the  parish  aforesaid,  in  the  county  aforesaid,  having  in  his 
custody  and  possession  a  certain  other  bill  of  exchange,  which  said 
last  mentioned  bill  of  exchange  is  as  follows,  that  is  to  say,  [here  set 
out  the  bill),  he  the  said  J.  S.  afterwards,  to  wit,  on  the  day  and  year 
last  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  felo- 
niously did  forge  on  the  said  last  mentioned  bill  of  exchange  an 
acceptance  ("any  endorsement  on,  or  assignment  of,  any  bill  of  ex- 
change, or  promissory  note  for  the  payment  of  money,  or  any  accep- 
tance of  a  bill  of  exchange"),  of  the  said  last  mentioned  bill  of  ex- 
change, which  said  forged  acceptance  is  as  follows,  that  is  to  say, 
"  Accepted,  payable  at  the  bank  of  Messrs.  C.  &  Co.,  .1.  G.,"  [or  as 
the  acceptance  may  be),  with  intent  to  defraud  the  said  J.  N.,  against, 
&:c.,  and  against,  &c.  [Conclude  as  in  book  1,  chap.  3). 


ip)  Arch.  C.  P.  r,tli  Am.  cd.  444.  Tliis  form  is  (lra\vn  under  the  stat.  11  Geo.  IV.  nnd  1 
Wrri.  IV.  c.  GO,  h.  .3,  vvliich  makes  it  felony  to  forge  "  any  bill  of  exchange  or  i)roinissory 
Dole  for  the  payment  of  money." 


FORGERV.  115 

Fourth  count.     Offering,  <^c.,  a  f urged  accepf,ance.{pp) 

{Same  as  the  last  to  the  end  of  the  coj)y  of  the  hill  of  exchange, 
then  as  follows):  and  on  which  said  last  mentioned  biU  of  exchange 
was  then  and  there  written  a  certain  forged  acceptance  of  the  said  last 
mentioned  bill  of  exchange,  which  said  forged  acceptance  of  the  said 
last  mentioned  bill  of  exchange,  is  as  follows,  that  is  to  say,  (Acre  set 
out  the  acceptance  as  in  the  last  count),  he,  the  said  J.  S.,  well  know- 
ing the  premises  last  aforesaid,  afterwards,  to  wit,  on  the  day  and  year 
last  aforesaid,  at  the  parish  aforesaid,  in  the  county  ^foresaid,  felo- 
niously did  offer,  utter,  dispose  of  and  put  off  the  said  forged  accept- 
ance of  the  said  last  mentioned  bill  of  exchange,  with  intent  to  defraud 
the  said  J.  N.,  (he  the  said  J.  S.  at  the  time  he  so  offered,  uttered, 
disposed  of  and  ])Ut  off  the  said  forged  acceptance  of  the  said  last 
mentioned  bill  of  exchange,  then  and  there  well  knowing  the  said 
acceptance  to  be  forged,)  against,  &c.,  and  against,  &c.  (Conclude  as 
in  book  1,  chap.  3). 

(If  an  endorsement  be  also  forged,  add  counts  for  it  in  this  form). 

Fifth  count. 

And  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  further 
present,  that  the  said  J.  S.  afterwards,  to  wit,  on  the  day  and  year 
last  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  having 
in  his  custody  and  possession  a  certain  other  bill  of  exchange,  which 
said  last  mentioned  bill  of  exchange  is  as  follows,  that  is  to  say, 
(here  set  out  the  bill),  he  the  said  J.  S.,  afterwards,  to  wit,  on  the  day 
and  year  last  albresaid,  at  the  parish  in  the  county  aforesaid,  felonious- 
ly did  forge  on  the  back  of  the  said  last  mentioned  bill  of  exchange, 
a  certain  endorsement  of  the  said  bill  of  exchange,  which  said  forged 
endorsement  is  as  follows,  that  is  to  say,  "J.  S.  &.  Co.,"  with  intent  to 
defraud  the  said  J.  N.,  against,  &c.,  and  against,  &c.  [Conclude  as  in 
hook  1,  chap.  3). 

Sixth  count.     Offering,  ^c,  forged  endorsement. 

(Same  as  the  last,  to  the  end  of  the  copy  of  the  hill  of  exchange, 
then  as  follows) :  and  on  the  back  of  which  said  last  mentioned  bill 
of  exchange  was  then  and  there  written  a  certain  forged  endorsement 
of  the  said  last  mentioned  bill  of  exchange,  which  said  last  mentioned 
forged  endorsement  is  as  follows,  that  is  to  say,  "J.  S.  &  Co.,"  he  the 
said  J.  S.  well  knowing  the  premises  last  aforesaid,  afterwards,  to  wit, 
on  the  day  and  year  last  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  feloniously  did  offer,  utter,  dispose  of  and  put  off  the  said 
last  mentioned  forged  endorsement  of  the  said  last  mentioned  bill  of 
exchange,  with  intent  to  defraud  the  said  J.  N.  (he  the  said  J.  S.,  at 
the  time  he  so  offered,  uttered,  disposed  of  and  put  off  the  said  last 
mentioned  forged  endorsement  of  the  said  last  mentioned  bill  of  ex- 
change, then  and  there  well  knowing  the  said  endorsement  to  be  for- 
ged)>  against,  &.c,,  and  against,  &c.    {Co7iclude  as  in  book  1,  chap.  3). 

{pp)  This  form,  as  will  he  perceived,  is  in  the  division  and  subject  matter  of  its  counts, 
the  same  as  tlint  on  p.  140,  though  drawn  on  a  subsequent  statute.  In  framing  counts  in 
parallel  cases,  under  the  American  statutes,  it  will  be  important  to  keep  both  precedents 
in  view. 

13 


14G  OFFENCES  AGAINST  PROPERTY. 

Indictment  for  for givg  and  puLlishivg  a  receipt  for  fayment  of  money. {cj) 

That  defendant,  &c.,  {averring  forgery  as  in  precedijig  fornifi), 
a  certain  acquittance  and  receipt(r)  for  money,  to  wit,  for  tlie  snm  of 
three  pounds  and  three  shiUings,  in  the  words,  letters  and  figures  fol- 
lowing, that  is  to  say,  "August  the  26th,  1781.  Received  of  Mr.  J. 
B.  for  Moustone  quarry,  the  full  sum  of  three  pounds  and  three  shil- 
lings. Received  by  me,  T.  F.,"  with  intent  to  defraud  J.  B.,  &c., 
against,  &c.,  and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Second  C"U7it,for  uttering. 

A  certain  false,  forged  and  counterfeited  acquittance  and  receipt 
for  money,  to  wit,  for  the  sum  of  three  pounds  and  three  shillings, 
feloniously  did  utter  and  publish  as  true;  which  said  last  mentioned 
false,  forged  and  counterfeited  acquittance  and  receipt  is  in  the  words, 
letters  and  figures  following,  that  is  to  say,  [set  out  the  receipt  as 
before),  with  intent  to  defraud  the  said  T.  B.,  he  the  said  A.  B.,  at 
the  time  when  he  so  uttered  and  published  the  said  last  mentioned 
false,  forged  and  counterfeited  acquittance  and  receipt,  well  knowing 
the  same  acquittance  and  receipt  so  by  him  uttered  and  published,  to 
be  false,  forged  and  counterfeited,  against,  &c.,  and  against,  &c. 
[Conclude  as  in  book  1,  chap.  3). 

Forging  a  receipt  imder  the  JVorth  CaroVma  statute.[s) 

That  J.  S.,  late  of  the  County  of  Johnston,  in  the  State  of  North 
Carolina,  on,  &c.,  with  force  and  arms,  in  the  County  of  Johnston 

(q)  Stark.  C.  P.  457. 

(r)  Unless  the  instrument  on  tlie  face  of  it  appear  to  be  a  receipt,  it  must  be  shown  by 
the  aid  of  i)ropcr  averments,  that  it  could  so  operate;  Stark.  C,  P.  116,  117;  ante,  p.  136. 

(s)  State  V.  Stanton,  1  Iiedell  424.  "Upon  the  form  of  the  indictment,  the  court  would 
perhaps  not  be  bound  now  to  decide,  since  the  other  point  disposes  of  the  case  here.  But 
as  the  point  may  be  material  upon  the  next  trial,  and  would,  probably,  soon  arise  in  other 
cases,  we  deem  it  fit  to  state  the  opinion  we  have  formed  out  of  it,  with  the  view  of  settling 
th'6  question.  It  would  have  been  more  satisfactory  to  us  if  in  the  books  of  criminal  plead- 
ing or  in  an  adjudication,  a  precedent  or  a  direct  authority  could  have  been  found.  We 
have,  however,  looked  through  the  standard  works  on  crown  law,  from  Ld.  Coke's  com- 
mentary on  the  statute  5  I'llizabeth  c.  14,  in  the  third  institute,  down  to  Mr.  Chilty's 
treatise,  and  through  many  books  of  forms,  without  succeeding  in  finding  an  indictment 
upon  these  words  in  that  statute,  'show  forth  in  evidence,'  or  a  rule  laid  down  upon 
them.  This  circumstance  may  not  perhaps  be  deciried  so  very  singular,  when  it  is  re- 
membered that  the  same  act  contains  also  the  words  'pronounce  and  publish,'  which  are 
more  cntensive,  and  include  ''show  forth  in  evidence.'  This  furnishes  a  reason  why  the 
indictment  should  always  be  for  '  j)ronouncing  and  publishing,'  and  not  for  'showing 
forth  in  evidence;'  since,  althouf^h  every  i>ublieation  is  not  showing  iorth  in  evidence,  yet 
showing  forth  in  evi(l<'nce  is  a  publishing  of  it.  Ld.  Coke  saying  that  using  any  words, 
written  or  oral,  whereby  the  instninicjit  is  set  forth  or  held  up  as  true,  is  'to  pronounce 
and  jtublish  it.'  We  have  tlK-refore  only  principle  for  our  guide,  and,  being  so  guided, 
we  have  arrived  at  the  conclusion  that  the  second  count  is  suilicient. 

"  In  the  first  place,  we  adhere  to  UritCs  case,  .3  Dev.  122,  that  the  words  'show  forth  in 
evidence,'  refer  to  a  judicial  proccctling.  The  question  then  is,  whether  the  particular 
proceeding  must  be  set  forth  at  large  in  the  indictint^tit ,  or  inay  not  be  shown  on  evidence 
under  the  gentTal  words  used  in  tint  statute  and  in  this  indictment. 

"  It  Hcems  to  be  ])roy)er,  aTid  perhaps  may  be  said  to  be  necessary,  when  an  offence  is 
created  by  Kt;ttute,  to  dcscriljc  it  in  the  indictment,  whether  consisting  of  the  commission 
Of  oii4iHs»on  f)f  prirticulnr  acts,  or  of  certain  aets  accompanied  by  a  particular  intent  in  the 
words  of  the  stiitnte.  This  is  certainly  so,  unless,  for  a  word  or  phrase  in  the  statute,  nn- 
otlicr  ifl  used  in  the  indictment,  which  is  clearly  of  the  same  k'gal  import,  or  has  a  broader 
sense  including  thai  in  the  statute.     Of  this  exception,  Rex  v.  Fuller,  1  U.  &-  P.  IfcO,  is  an 


FORGERY.  147 

aforesaid,  feloniously  did  wittingly  and  falsely  forge,  make  and  coun- 
terfeit, and  did  cause  and  procure  to  be  falsely  made,  forged  and 
counterfeited,  and  did  willingly  act  and  assist  in  the  false  making, 
forging  and  counterfeiting  a  certain  receipt,  which  said  false,  forged 
and  counterfeited  receipt  is  as  follows,  that  is  to  say,  "  Received  of  J. 
S.  thirty-five  dollars  and  ninety-one  cents,  this  22d  day  of  May,  1838, 
in  part  of  the  rent  of  land  that  I  rented  to  him  for  the  year  1837. 

W.  W." 
with  intention  to  defraud  one  W.  W.,  against,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  say 
and  present,  that  the  said  J.  S.,  afterwards,  to  wit,  on,  &c.,  in  the 
County  of  Johnston  aforesaid,  feloniously  did  utter  and  publish  as 
true,  and  show  forth  in  evidence  a  certain  other  false,  forged  and 
counterfeit  receipt,  which  said  last  mentioned  false,  forged  and  coun- 

example.  But  such  examples  are  very  rare ;  and  on  the  contrary,  the  case  of  Rex  v.  Davis, 
Leach  493,  and  otliers  of  tliat  kind,  show  how  strictly  the  courts  adhere  to  the  letter  of  the 
law.  Finding  it  thus  to  be  generally  true,  that  in  describing  the  offence,  the  indictment 
must  use  all  the  words  of  the  statute ;  so,  on  the  other  hand,  it  would  seem  to  be  equally 
true  as  a  general  rule,  that  the  indictment  is  sufficient  if  it  contain  all  the  words  of  the 
statute.  When  the  language  of  the  statute  is  transferred  to  the  indictment,  the  expres- 
sions miist  be  taken  to  mean  the  same  thing  in  each.  There  can  be  few  instances  in 
which  the  same  words  thus  used,  ought  to  or  can  be  received  in  a  different  sense  in  the 
one  instrument  from  that  in  the  other.  As  it  is  certain  that  the  indictment  was  intended 
to  describe  the  offence  which  the  statute  describes,  it  follows,  from  the  use  of  the  very 
same  language  in  both,  that  the  one  means  what  the  other  does,  neither  more  nor  less.  It 
is  true  that  some  few  exceptions  from  this  rule  have  been  established  by  adjudications,  but 
they  have  not  appeared  to  us  to  embrace  the  present  case.  Thus,  a  statute  may  be  so  in- 
accurately penned,  that  its  language  does  not  express  the  whole  meaning  the  legislature 
biid ;  and  by  construction,  its  sense  is  extended  beyond  its  words.  In  such  a  case,  the  in- 
dictment must  contain  such  averments  of  other  facts,  not  expressly  mentioned  in  the  statute, 
as  will  bring  the  case  within  the  true  meaning  of  the  statute;  that  is,  the  indictment  must 
contain  such  words  as  ought  to  have  been  used  in  the  statute,  if  the  legislature  had  cor- 
rectly expressed  therein  their  precise  meaning.  In  State  v.  Johnson,  1  Dev.  360,  for  ex- 
am|)le,  it  was  held,  that  besides  charging  in  the  words  of  the  act,  that  the  prisoner,  being 
on  board  the  vessel,  concealed  the  slave  therein,  the  indictment  should  have  charged  a 
connexion  between  the  prisoner  and  the  vessel,  as  that  he  was  a  mariner  belonging  to  her; 
because  that  was  the  true  construction  of  the  act.  $o,  where  a  statute  uses  a  generic 
term,  it  may  be  necessary  to  state  in  the  indictment  the  particular  species  in  respect  to 
which  the  crime  is  charged.  As,  upon  a  statute  for  killing  or  stealing  '  cattle,'  an  indict- 
ment using  only  that  word,  is  not  sufficient,  but  it  ought  to  set  forth  the  kind  of  cattle,  as 
a  horse  or  a  cow  ;  Rex.  v.  C^halkeley,  R.  &  R.  258.  But  where  a  statute  makes  a  particu- 
lar act  an  offence,  and  sufficiently  describes  it  by  terms  having  a  definite  and  specific 
meaning,  without  specifying  the  means  of  doing  the  act,  it  is  enough  to  charge  the  act 
itself,  without  its  attendant  circumstances.  Thus,  upon  a  statute  making  it  felony  to 
endeavour  to  seduce  a  soldier  from  his  duty,  an  indictment  is  good  which  charges  such 
'  an  endeavour,'  without  stating  the  mode  adopted  ;  Fuller's  case,  before  cited.  So,  in  the 
indictments  founded  on  the  words  'pronounce  and  publish,'  in  this  same  statute  of  Eliza- 
beth, (which  are  not  ours),  the  precedents  uniformly  charge  'the  pronouncing  and  pub- 
lishing  of  the  forged  instrument  as  true,'  without  stating  the  means  by  which,  or  the  per- 
son to  whom  is  was  published.  Upon  the  more  modern  English  statutes  against  '  [)Utting 
off  or  disposing  of  forged  or  counterfeit  money  or  bank  notes,  it  is  also  held,  that  the 
circumstances  need  not  be  stated ;  Rex  v.  Holden  et  al.,  2  Taunt.  334.  We  do  not  perceive 
why  the  same  principle  does  not  apply  to  tiie  other  words  'show  forth  in  evidence,'  used 
in  the  act  of  Elizabeth,  and  in  our  act;  and  we  are  not  aware  of  any  disadvantasfe  to  the 
prisoner  from  the  omission  to  set  out  in  the  indictment  tiie  particular  proceeding  in  which 
t.'ie  evidence  was  offered.  We  agree  that  such  a  judicial  proceeding  must  be  proved;  and 
if  it  be  not  properly  proved,  the  prisoner  can  put  the  matter  on  the  record  by  an  excep- 
tion, and  have  the  same  benefit  thereof  on  a  motion  to  reverse  the  judgment,  and  for  a 
venire  de  novo,  that  he  could  have  from  a  motion  in  arrest  of  judgment. — Hence  we  hold 
the  second  count  in  this  indictment  to  be  good." 


148  OFFENCES  AGAINST  PROPERTY. 

terfeited  receipt  is  as  follows,  that  is  to  say,  "  Received  of  J.  S.,  thirty- 
five  dollars  and  ninety-one  cents,  this  22d  day  of  May,  1S38,  in  part 
of  the  rent  of  the  land  that  I  rented  to  him  for  the  year  1837.  W.  W.'* 
with  intention  to  defraud  the  said  W.  W.,  he,  the  said  J.  S.,  at  the 
time  he  so  uttered  and  published,  and  showed  forth  in  evidence  the 
said  last  mentioned  false,  forged  and  counterfeited  receipt  as  afore- 
said, then  and  there  well  knowing  the  same  to  be  false,  forged  and 
counterfeited,  against,  &c.,  and  against,  S:c.  {Conclude  as  in  book  1, 
chap.  3). 

Forging  a  certificate  of  a  public  debt  in  Massachusetts.{t) 

The  jurors,  &c.,  upon  their  oath  present,  that  A.  B.,  of,  &c.,  on 
at  did  falsely  make,  forge  and  counterfeit,  and  did  cause  and 

procure  to  be  falsely  made,  forged  and  counterfeited,  and  did  willingly 
aid  and  assist  in  falsely  making,  forging  and  counterfehing  a  certain 
note,  {or  certificate  or  other  bill  of  credit,  as  the  case  may  be),  pur- 
porting to  be  a  note  which  had  been  duly  issued  by  the  treasurer  of 
the  said  commonwealth,  thereto  duly  authorized,  for  a  debt  of  this 
commonwealth ;  which  said  false,  forged  and  counterfeit  note  is  of 
the  purport  and  effect  following,  to  wit,  {here  insert  an  exact  copy 
of  the  note  or  instrument  in  icords  and  figures)  ;  with  intent  the 
said  commonwealth  to  injure  and  defraud,  against,  &.c.,  and  contrary, 
k.c.{u)     {Conclude  as  in  book  1,  chap.  3). 

Forging  a  fieri  facias  af  cojnmon  law.(v) 

That  J.  S.,  late,  &c.,  on,  &c.,  unlawfully  and  wickedly  contriving 
to  injure,  oppress,  impoverish  and  defraud  one  J.  N.  then  and  there 
unlawfully,  knowingly  and  falsely  did  forge  and  counterfeit  a  certain 
writing  on  parchment,  purporting  to  be  a  writ  of  our  lady  the  queen 
of  fieri  facias,  and  to  have  sued  out  of  the  court  of  our  said  lady  the 
queen  of  the  bench  at  Westminster  in  the  county  aforesaid ;  which 
said  false,  forged  and  counterfeited  writing  is  as  follows,  that  is  to 
say  {here  set  out  the  fieri  facias  verbatim),  with  intent  the  said  J.  N. 
to  injure,  oppress,  impoverish  and  defraud,  to  the  great  damage  of 
the  said  J.  N.,  to  the  evil  example  of  all  others  in  the  like  case  oifend- 
ing,  and  against,  &c.,  {concluding  as  in  book  \,chap.  3).  {'^This  coiint,'" 
remarks  Mr.  Archbold,  "  apjpears  to  be  sufficient,  iciihoul  stating  that  the 
writ  was  actually  executed,  or  the  prosecutor^s  goods  seized  under  it." 
Hovever,  it  may  be  as  veil  to  add  a  second  count  similar  to  the  above, 
in  tile  end  (f  the  statement  of  the  fi.  fa.,  and  t/ien  continue)  :  with  in- 
tent the  said  J.  N.  to  injure,  oppress,  impoverish  and  defraud.    And 

(/;  Davis'  Prec.  126. 

(u)  If  tlic  note  or  certificate  was  issued  by  a  cominissioner  or  commissioners,  it  is  to 
be  so  alleged,  instead  of  alleging  tlicin  to  be  issued  by  the  treasurer.  See  the  words  of 
the  act. 

This  form  may  l)c  used  and  adapted  to  all  the  cases  of  uttering  and  publisliing  forircd 
instruments  which  ni;iy  be  prosecuted  upon  Ibis  section  of  the  statute;  Davis'  Prec.  12G. 

In  (.'oin.  V.  Ross,  2  IVlass.  373,  it  is  said  that  it  is  not  necessary,  in  an  indictinciit  Hir 
uttering  a  forptrj  promissory  note,  to  set  forth  the  date  of  the  note,  nor  the  tiuic  when  the 
money  was  made  payahlc. 

(vj  Archbold'sC.  V.  olh  Am.  ed.  3y:2. 


FORGERY. 


149 


the  said  J.  S.  afterwards  and  before  the  said  last-mentioned  pretended 
writ  purported  to  be  returnable,  to  wit,  on  the  day  and  year  last 
aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  the  said 
last-mentioned  false,  forged  and  counterfeited  writing,  knowingly, 
falsely  and  deceitfully,  as  a  true  writ  of  our  said  lady  the  queen  of 
fieri  facias,  did  cause  to  be  delivered  to  the  then  sheriff  of  Middlesex 
for  execution  to  be  made  thereof,  and  afterwards  and  before  the  last- 
mentioned  pretended  writ  purported  to  be  returnable,  to  wit,  on  the 
day  and  year  aforesaid,  in  the  parish  aforesaid  in  the  county  afore- 
said, did  cause  to  be  seized  and  taken,  divers  goods  and  chattels  ot 
the  said  J.  N.  to  a  large  amount,  by  pretence  of  the  said  pretended 
writ,  to  the  great  damage  of  the  said  J.  N.,  to  the  evil  example  of  all 
others  in  the  like  case  offending,  and  against,  &c.  [Conclude  as  in 
book  1,  chap.  3). 

Third  count.     Uttering  same. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  the  said  J.  S.  afterwards,  to  wit,  on  the  day  and  year  afore- 
said, at  the  parish  aforesaid,  in  the  county  aforesaid,  unlawfully, 
falsely  and  deceitfully  did  utter  and  publish  as  a  true  writ  of  our  lady 
the  queen  of  fieri  facias,  a  certain  other  false,  forged  and  counterteited 
writing  on  parchment,  purporting  to  be  a  writ  of  our  lady  the  queen 
of  fieri  facias,  and  to  have  issued  out  of  the  court  of  our  lady  the 
queen  of  the  bench  at  Westminster,  in  the  county  aforesaid ;  which 
said  false,  forged  and  counterfeited  writing  is  as  follows,  that  is  to 
say  [here  set  out  the  writ  verbatim),  with  intent  the  said  J.  N.  to  in- 
jure, oppress,  impoverish  and  defraud  (he  the  said  J.  S.  at  the  time  he  so 
uttered  and  published  the  said  last-mentioned  talse,  forged  and  coun- 
terfeited writing  as  aforesaid,  then  and  there  well  knowing  the  same 
to  be  false,  forged  and  counterfeited).  And  the  said  J.  S.  afterwards, 
and  before  the  said  last-mentioned  pretended  writ  purported  to  be 
returnable,  to  wit,  on  the  day  and  year  last  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  the  last-mentioned  false,  forged  and 
counterfeited  writing,  knowingly,  falsely  and  deceitfully,  as  a  true 
writ  of  our  lady  the  queen  of  fieri  facias,  did  cause  to  be  delivered  to 
the  then  sheriff  of  Middlesex,  for  execution  to  be  made  thereof;  and 
afterwards,  and  before  the  said  last-mentioned  pretended  writ  pur- 
ported to  be  returnable,  to  wit,  on  the  day  and  year  last  aforesaid,  at 
Hie  parish  aforesaid,  in  the  county  aforesaid,  did  cause  to  be  seized 
and  taken  divers  goods  and  chattels  of  the  said  J.  N.  to  a  large 
amount,  by  pretence  of  the  said  pretended  writ;  to  the  great  damage 
of  the  said  J.  W.,  to  the  evil  example  of  all  others  in  the  like  case 
offending,  and  against,  &c.  {Conclude  as  in  book  1,  chap.  3). 

{Add  counts  describing  the  instrument,  S,'C.,  iii  such  manner  as 
tvould  sustain  an  indictment  for  stealing  the  same). 

Forgery  of  a  bond  at  common  law.{x) 

That  D.  M.  G.,  &c.,  late  of,  <S:c.,  on,  &c.,  with  force  and  arms  in, 
&.C.,  of  his  own  head  and  imagination,  did  wittingly  and  falsely  make, 

(x)  Stiitc  r.  Gardiner,  1  Iredell  27.    Ruffin  C.  J. :  "  As  the  grounds  of  the  motion  in  ar- 

]3* 


15')  OFFKXCES  AGAIXST  PROPERTY. 

fovge  and  counterfeit,  and  did  wittingly  assent  to  the  falsely  making, 
forging  and  counterfeiting  a  certain  bond  and  writing  obligatory  in 
tlie  words,  letters  and  figures,  tliat  is  to  say : 

"  Four  months'  after  date,  with  interest  from  the  date,  we  or  either 
of  us  do  promise  to  pay  E.  M.  or  order,  the  sum  of  twenty-four  dol- 
lars and  thirty-eight  and  three-quarter  cents,  for  value  received  of 
him,  as  witness  our  hands  and  seals  this  19th  day  of  June,  1839. 

"D.  M'G.,  [Seal]. 
A.  G.,  [Seal]. 
J.  V.  [Seal]." 

with  intent  to  defraud  the  said  E.  M.,  against,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chuj).  3). 

At  common  lav,  hy  separating  from  the  hack  of  a  note  an  endorsement 
of  part  paymenL{y) 

That  J.  M'L.,  of,  &c.,  on,  &c.,  with  force  and  arms,  at,  &c.,  did 
wutingly,  falsely  and  deceitfully,  forge  and  alter,  and  did  procure  to 

rest  of  judgment,  are  not  stated  in  the  record,  and  the  court  has  not  had  the  assistance  of 
counsel  for  the  prisoner,  it  is  possible  we  may  have  overlooked  some  point  on  which  the 
motion  ouglit  to  have  been  allowed.  If  so,  it  will  be  a  source  of  sincere  rcgfrct,  for  in  the 
absence  of  counsel  of  his  own  selection,  the  court  has  endeavourgd  to  discharge  for  the 
prisoner  that  office  which,  as  a  public  duty,  is  devolved  on  us.  After  a  careful  examina- 
tion of  the  record,  we  are  unable  so  to  discover  any  reason  why  the  sentence  of  the  law 
should  not  follow  the  conviction. 

"  In  considering  the  case,  however,  one  or  two  points  have  suggested  themselves,  on 
which  it  may  be  supposed  an  objection  might  have  been  taken,  and  on  which,  therefore, 
the  court  may  properly  give  an  opinion. 

"As  the  name  of  the  |jrisoner  and  that  of  one  of  the  supposed  obligors  in  the  forged  in- 
strument, appear  to  be  the  same,  it  may  have  been  intended  to  present  the  question,  wlie- 
ther  the  indictment  can  allege  the  forgery  of  the  whole  instrument  by  one  of  the  parties 
to  it.  To  that,  we  think,  there  would  be  several  answers.  One,  that  the  objection  ought 
to  have  been  taken  on  the  evidence,  and  cannot  be  taken  in  this  manner,  since  it  does  not 
legally  follow  that  the  prisoner  is  tlie  same  person  with  the  supposed  obligor,  although  the 
names  be  the  same.  But  admitling  the  identity  of  those  persons,  yet  secondly,  that  it  will 
not  vitiate  the  indictment.  The  forgery  may  have  consisted  of  alterations  of  a  true  instiu- 
ment,  as  by  making  the  sum  mentioned  in  the  bond  more  6r  less  than  it  was  at  first,  or 
by  adding  the  names  of  the  other  two  obligors  without  their  knowledge  or  consent,  and 
that  of  the  obligee.  Now,  it  is  a  settled  rule,  that  in  such  cases  the  foigeiy  may  be  charged 
specially,  by  alleging  tlic  alterations;  or  the  forgery  of  the  entire  instrument  may  be 
charged  ;  and  this  last  will  be  supported  by  evidence  of  the  alterations ;  Rex  v.  Ellsworth, 
2  East  P.  C.  9&6,  988.  After  the  alterations,  the  instrument  as  a  whole,  is  a  different  in- 
strument from  what  it  was;  and  theiefoie,  in  its  altered  state,  is  a  forgery  ibr  the  whole. 
Po.ssibly,  the  prisoner's  counsel  meant  to  oliject  to  the  indictment,  as  a  repugnancy,  that  it 
charges  the  forgery  of  a  certain  Ixmd ;  whereas  if  it  be  a  forgery,  it  is  not  a  i)ond,  but  only 
purports  to  be  such.  But  that  objection  too,  would  be  untenable.  The  statute  uses  the 
same  language:  'forge  any  deed,  will,  bond,  &,c. ;'  and  while  it  is  prudent,  so  it  is  gene- 
rally safe,  to  follow  in  the  iiidictment,  the  words  of  the  statute.  Besides,  upon  looking  to 
the  precedents,  in  books  of  criminal  i)leading,  it  is  found,  that  in  this  respect  the  present 
indictment  conforms  to  those  long  settled. 

"Without  further  lights  as  to  the  points  intended  to  be  relied  on  for  the  prisoner,  the  court 
13  therefore  under  the  necessity  of  saying,  that  there  is  no  error  in  the  judgment,  and  di- 
lectiiig  the  steps  necessary  to  its  execiilion." 

(y)  See  Plate  v.  M'Lenan,  1  Aik.  312;  where  the  form  in  this  tenor  was  held  good  at 
I'ommon  law.  "The  briefs  and  arguments  on  the  part  of  the  respondent,"  said  the  court, 
"  aim  to  convince,  that  the  act  complained  of  in  the  several  counts  is  not  forgery  within  the 
statute,  and  of  this  opinion  are  tlie  court.  Nothing  must  be  constnud  to  be  within  a  pen;il 
ftalute  but  what  is  liiirly  within  it.  'I  he  section  of  the  statute  which  is  relifd  upon  (or 
the  support  of  this  iiidielinent  is  compost  d  of  particulars,  in  its  descrii)ti(.n  of  the  olUrxc, 
and  the  case  before  us  is  not  among  those  {  arliculars.     It  is  a  caic  emitted,     'i'hat  which 


FORGERY.  151 

be  forged  and  altered,  a  certain  promissory  note,  of  the  tenor  follow- 
ing, that  is  to  say  : 

"Barnet,  Aiignst  21st,  1821. 
"For  value  received,  we  jointly  and  severally  promise  to  pay  J. 
JNI'L.,  or  his  order,  sixty  dollars,  to  be  paid  in  beef  cattle,  the  1st  Oct. 
1822,  or  grain,  the  1st  Jan.  1823,  with  interest. 

E.  C. 
R.  M." 
"Attest,  H.  A.  R. 
On  the  back  of  which  promissory  note,  was  then  and  there  en- 
dorsed twenty  dollars,  in  part  payment  thereof.     And  the  said  J. 
M'L.,  said  endorsement  then  and  there  being  on  the  back  of  said 
note,  and  the  balance  of  said  note  being  then  and  there  due,  and  no 
more,  with  force  and  arms,  wittingly,  falsely  and  deceitfully  did  alter 
said  note,  by  then  and  there  wittingly,  falsely  and  decehfully  sepa- 
rating said  endorsement  from  said  note,  with  intent  to  defraud  and 
deceive  the  said  E.  C.  and  R.  M.,  to  the  great  damage  of  the  said  C. 
and  M.,  to  the  evil  example  of  others  in  like  cases  offending,  contrary, 
&.C.,  and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Forgery  in  altering  a  pedlar's  license,  at  common  law.{z) 

That  G.  K.,  late,  &c.,  on,  &c.,  having  been  recommended  by  the 
Court  of  General  Quarter  Sessions  of  the  Peace  and  Gaol  Delivery  in 
and  for  the  county  of  ,  as  a  proper  person  for  the  employment 

of  a  hawker  or  pedler,  within  this  state,  did  obtain,  receive  and  have 
a  license  for  that  purpose,  from  the  supreme  executive  council  of 
this  commonwealth,  under  the  hand  of  the  honourable  C.  B.  esquire, 
then  and  still  being  vice-president  of  the  same  council,  and  under  the 
seal  of  the  state,  which  license  was  in  the  words  following,  to  wit,  "By 
the  Supreme  Executive  Council  of  the  Commonwealth  of  Pennsylva- 
nia, whereas,  0.  K.,  the  bearer  hereof,  intending  to  follow  the  busi- 
ness of  a  pedler,  within  this  Commonwealth  of  Pennsylvania,  hath 
been  recommended  to  us  as  a  proper  person  for  that  employment  and 
requesting  a  license  for  the  same,  we  do  liereby  license  and  allow  the 

is  called  a  note,  in  the  statute,  can  only  mean  all  that  which,  connected  together,  composes 
the  promise  or  liability  from  the  payor  to  the  payee;  and  the  making  or  altering  any- 
material  part  of  this  is  termed  forgery  by  the  statute.  The  woxAs  assignment  or  endorse- 
ment in  the  statute  are  used  as  synonymous,  and  mean  a  transfer.  But  if  tiiey  meant  an 
endorsement  of  payment,  still  it  is  the  making  or  altering  of  them  that  constitutes  forgery. 
So  of  the  expressions  acquittance  or  receipt  for  money  or  other  things,  if  tliey  would  com- 
prehend  the  endorsement  of  payment,  still  it  is  the  making  or  altering  the  same  that  con- 
stitutes forgery.  The  severing  such  endorsement  already  made,  is  a  different  act.  It 
leaves  the  endorsement  legible,  consisting  of  the  same  words  and  letters  as  before  severed. 
In  short,  it  is  not  one  of  those  acts  pointed  out  in  the  statute  to  be  punished  as  forgery. 
But  this  same  act  is  as  great  a  crime  against  public  justice,  and  the  public  peace,  as  those 
forgeries  that  are  clearly  within  the  statute.  It  is  as  great  a  crime  in  foro  conscientia.  It 
is  an  act  mnla  in  se.  It  is  a  crime  at  common  law.  The  contra  farmam  statuti  may  be 
treated  as  surplusage  throughout  the  indictment,  and  it  will  remain  a  good  indictment  for 
a  misdemeanor  at  common  law.  See  1  Chit.  C.  L.  23S — 2i)0th  marginal  page.  Were  (he 
:.ct  complained  of  an  offence  only  as  made  such  by  statute,  this  indictment  could  not  be 
supported  upf)n  the  abuve  principle.  But  this  princi[)le  apj)lics  to  all  offences  against 
govornmfnt,  acr:iin«t  pul)li''  jii'^tiee,  fir  acts  of  extortion,"  itc. 

■^z)  Drawn  in  175?  by  Mr.  B.aJfjrJ,  then  attoriicy -general  of  Pcan^ylvania. 


152  OFFENCES  AGAINST  PROPERTY. 

said  G.  K.  to  employ  himself  as  a  pedler  and  hawker  within  the  said 
commonwealth,  to  travel  with  one  horse,  and  to  expose  and  sell 
divers  goods,  wares  and  merchandises,  until,  &c.,  provided' he  shall 
during  the  said  term  observe  and  keep  all  laws  and  ordinances  of  the 
said  commonwealth,  to  the  said  employment  relating.  Given  under 
the  seal,  &c.  C.  B.,  V.  P." 

"  Attest,  J.  A.,  Secretary." 
And  that  he  the  said  G.  K.  so  being  in  possession  of  the  said  license, 
afterwards,  to  wit,  on,  &c.,  at,  &c.,  with  force  and  arms,  &c.,  falsely, 
fraudulently  and  deceitfully  did  alter,  and  cause  to  be  altered,  by 
falsely  and  deceitfully  erasing  the  word  six  in  the  said  license,  and  in 
the  place  thereof  falsely  and  deceitfully  did  make,  forge  and  add  the 
word  seven,  whereby  the  said  license  so  altered  as  aforesaid,  pur- 
porting to  be  given,  &c.,  with  intent  to  defraud  the  said  common- 
wealth and  to  deceive  the  citizens  thereof,  to  the  evil  example  of  all 
others,  and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Forgery  of  a  note  ukich  cannot  he  farticularly  described  in  consequence 
of  its  being  destroyed.{a) 

That,  &c.,  at,  &c.,  on,  &c.,  devising  and  intending  to  cheat  and 
defraud  one  D.  C.  of  his  goods  and  moneys, did  falsely  and  fraudulently 
forge  and  counterfeit,  a  cei'tain  negotiable  promissory  note  for  the 
payment  of  money,  purporting  to  be  made  by  the  said  D.  C,  payable 
to  one  A.  S.  B.,  which  said  false,  forged  and  counterfeited  negotiable 
promissory  note,  is  to  the  purport  following,  that  is  to  say : 

"  Ninety  days'  after  date,  I  promise  to  pay  to  A.  G.  B.,  or  order, 
fourteen  hundred  and  twenty-eight  dollars,  value  received.  May, 
1833.  D.  C,  (endorsed),  A.  S.  B. :"  A  more  particular  description 
of  which  is  now  here  to  the  jurors  unknown,  said  note  being  destroy- 
ed ;  with  intent  to  cheat  and  defraud  the  said  C.  D.,  &c. 

Forgery  of  a  note  whose  tenor  cannot  he  set  out  on  account  of  its  being 
in  defendants  possession. 

That  A.  B.,  &c.,  at,  &c.,  falsely  and  fraudulently  did  forge  and 
counterfeit  a  certain  promissory  note,  for  the  payment  of  money,  pur- 
porting to  be  made  by  one  A.  B.,  payable  on  demand,  to  one  C.  D., 
the  tenor  of  which  said  note  is  to  this  inquest  unknown,  by  reason 
that  the  said  A.  B,,  having  the  said  libel  in  his  possession  and  custody, 
hath  altogether  refused  and  still  doth  refuse  to  produce  the  same,  and 
to  permit  the  same  to  be  inspected  by  this  incjuest,  although  thereto 
often  recpiested,  to  wit,  by  the  (attorney-general  of  the  common- 
wealth), at  and  before  the  sitting  of  this  inquisition,  but  which  said 
note  was  in  substance  as  follows,  {/lere  set  forth  the  substance  of  the 
note  and  conclude  as  in  last  precedent). 


(a)  Sec  People  V.  Badgclcy,  IC  Wend.  53;  vvlicre  tlic  fact  of  tlie  destruction  ofllic  note, 
as  this  act  ibilli,  was  lield  to  supersede  llic  neccssily  of  pleadiiiir  it  accoidiiig  to  its  precise 
form. 


FORGERY.  153 

Forgery  of  bond  ichen  forged  inslniment  is  in  defendant's  possession. {b) 

That,  &c  ,  on,  &c.,  at,  &c.,  did  falsely  and  feloniously  make,  forge 
and  counterfeit, and  did  then  and  there  willingly  and  feloniously  act  and 
assist  in  the  ftilse  making,  forging  and  counterfeitingof  acertam  false, 
forged  and  counterfeited  bond  and  writing  obligatory  lor  the  payment 
of  money,  bearing  date  on  some  day  and  year  to  the  jurors  aforesaid 
unknown,  in  a  penal  sum  to  the  jurors  aforesaid  unknown,  with  a  con- 
dition thereunder  written  for  the  payment  of  a  certain  sum  to  the  jurors 
aforesaid  unknown,  with  interest  thereon,  to  the  said  J.  K.  (the  de- 
fendant), purporting  to  have  been  executed  by  one  G.  B.,  late  of,  &.C., 
which  said  lalse,  forged  and  counterfeited  bond  and  writing  obliga- 
tory for  the  payment  of  money,  is  in  his  the  possession  and  custody  of 
the' said  J.  K.,  (the  defendant,)  with  intent  to  defraud  one  J.  C,  against 
&.C.  {Conclude  as  in  book  1,  chap.  3). 

Forgery  at  common  law,  in  passing  counterfeit  bank  notes.{c) 

That  the  said  J.  S.  on  the  same  day  and  year  aforesaid,  at  the 
county  aforesaid,  with  force  and  arms,  having  in  his  custody  and  pos- 
session a  certain  other  false,  forged  and  counterfeited  paper  writing, 
partly  written  and  partly  printed,  purporting  to  be  a  true  and  genuine 
promissory  note  for  the  payment  of  money,  called  a  bardf  note  of  the 
Bank  of  North  America,  and  purporting  to  be  signed  by  J.  N.,  presi- 
dent, and  also  by  the  cashier  of  the  said  bank,  the  tenor  of  which  said 
last  mentioned  false,  forged  and  counterfeited  paper  writing,  partly 
written  and  partly  printed,  purporting  to  be  a  true  and  genuine  pro- 
missory note  for  the  payment  of  money,  called  a  bank  note  of  the 
Bank  of  North  America,  is  as  follows,  that  is  to  say : 
"X.         I  promise  to  pay  to  D.  C,  or  bearer,  on  demand,  ten  dol-  10" 

lars.    Philadelphia,  26th  of  February,  1S08,  n.  2467,  e.  614. 

For  the  president,  directors  and  company  of  the  Bank  of 

North  America. 
"10  H.  D.,  Jr.,  Cash.  J.  N.,  Prest.  X" 

falsely,  illegally,  knowingly,  fraudulently  and  deceitfully,  did  utter 
and  publish,  as  a  true  and  genuine  promissory  note,  for  the  payment 
of  money,  called  a  bank  note  of  the  Bank  of  Nortli  America,  the  said 
last  mentioned  false,  forged  and  counterfeited  paper  writing,  partly 
written  and  partly  printed,  purporting  to  be  a  true  and  genuine  pro- 
missory note  for  the  payment  of  money,  called  a  bank  note  of  the 
Bank  of  North  America,  he  the  said  J.  S.,  at  the  time  of  uttering  and 


(b)  People  r.  Kin2:sley,  2  Cow.  522.  The  second  count  in  this  indictment  charged 
the  defendant  with  dcstroyinj;  the  alleged  forged  bond  on  some  day  to  the  jurors  unknown, 
and  the  third  count  was  for  uttering  the  same.  Judgment  was  entered  upon  the  verdict 
of  the  jury,  tlie  court  adopting  the  principles  of  Com.  v.  Houghton,  8  Mass.  373. 

(c)  Com.  V.  Searle,  2  Binn.  332.  The  then  Pennsylvania  act  of  assembly  making  penal 
the  passing  of  counterfeit  bank  notes  used  the  expression  "passing"  alone,  and  conse- 
quently this  count,  independently  of  the  want  of  the  conclusion  against  the  statute,  was 
lield  not  to  comprehend  the  statutory  misdemeanor.  It  was  sustained,  however,  nt  com- 
mon hw,  and  it  is  on  this  [irinciple  that  indictments  in  Pennsylvania  at  comuion  law  lor 
foigiiig  and  uttering  countcrlcit  notes  of  foreign  banlis,  rest.     6ec  nc.vt  fuiin. 


154  OFFENCES  AGAINST  PROPERTY. 

publishing  the  same,  then  and  there  well  knowing  the  same  to  be 
false,  forged  and  counterfeited,  with  intent  to  defraud  J.  S.,  to  the  evil 
example  of  others  in  like  case  offending,  and  against,  &c. 

Forgery  of  the  note  of  a  foreign  bank  as  a  misdemeanor  at  common  lai(\ 

That  A.  B.,  late  of,  &c.,  on,  &c.,  with  force  and  arms,  did  falsely 
make,  forge  and  counterfeit,  and  cause  and  procure  to  be  falsely  made, 
forged  and  counterfeited,  a  certain  note  in  imitation  of,  and  purport- 
ing to  be,  a  note  issued  by  the  order  of  the  president,  directors  and 
company  of  (stating  the  bank),  for  the  sum  of  dollars,  purport- 

ing to  be  signed  by  president  and  cashier,  payable  to 

or  bearer  on  demand,  dated  one  thousand  eight  hundred  and 

which  said  falsely  made,  forged  and  counterfeited  note,  partly 
written  and  partly  printed,  is  in  the  words  and  figures  following : 
{setting  forth  the  note),  with  intent  to  defraud  the  said  (if  there 

be  -proof  of  the  incorporation  of  the  bank,  you  can  point  the  intent  at  it, 
if  not,  at  the  party  to  whom  the  note  was  probably  meant  to  be  passed ; 
a  general  intent  to  defraud  the  people  of  the  state  or  district  will  do  when 
no  particular  intent  can  be  shown),[d)  against,  &c.  [Conclude  as  in 
book  1,  chap.  3). 

And  the  inquest  aforesaid,  upon  their  respective  oaths  and  affir- 
mations aforesaid,  do  further  present,  that  the  said  A.  B.  ou  the  day 
and  year  aforesaid,  at  the  county  and  within  the  jurisdiction  afore- 
said, with  force  and  arms,  then  and  there  did  pass,  utter  and  publish, 
and  attempt  to  pass,  utter  and  publish,  as  true,  a  certain  false,  forged 
and  counterfeit  note,  purporting  to  be  a  note  issued  by  the  said  (as  in 
last  count),  for  the  sum  of  dollars,  signed  by  president, 

and  cashier,  payable  to  or  bearer,  on  demand,  and  dated 

one  thousand  eight  hundred  and  which  said  false,  forged 

and  counterfeit  note,  partly  written  and  partly  printed,  is  in  the  words 
and  figures  following,  to  wit,  (setting  forth  note),  the  said  A.  B., 
then  and  there  well  knowing  the  said  note  to  be  as  aforesaid  false, 
ibrged  and  counterfeit,  with  intent  to  defraud  (the  party  on  whom 
it  was  passed),  against,  &.c.  (Conclude  as  in  book  \,chap.  3). 

Forging    a    bank  ■  note,    and  uttering   the    same,   under  English  sta- 
tute.(e) 

That  J.  B.,  late  of,  &c.,  labourer,  heretofore,  that  is  to  say,  on,  &c., 
with  force  and  arms,  at,  &c.,  feloniously  did  forge  and  counterfeit(y) 
a  certain  bank  note,(^^)  the  tenor(/<)  of  which  said  forged  and  coun- 

{<!)  Sec  People  V,  Stearns,  21  Wend.  409.  Sec  next  form  for  the  g-eneral  methods  of 
stating  intent  in  sueh  cases.  An  intent  to  defraud  A.  and  li.  is  sustained  by  proof  of  an 
intent  to  defiaud  A.;  Vcasie's  case,  7  (ireenl.  131. 

(e)  This  form  is  found  in  Starkie's  ('.  P.  4.'j2, 

(/")  'I'hcse  arc  the  words  of  the  statute,  it  is  unnecessary  to  allege  that  he  did  falsely, 
forge  and  counterfeit,     'i'his  count  is  fiamcd  upon  tin;  stat.  4.5  Geo.  III.  c.  89,  s.  2. 

(^)  It  is  essential  to  sliow  that  the  instriimcMit  forged  is  of  tlic  descri|)lion  prol)il>itcd  hy 
the  statute;  sec:  arile,  p.  I'.H).  As  to  the  avcrnieiits  which  are  necessary,  vvlien  tlie  forged 
writing  does  not  i)ur[)ort  to  be  of  the  kind  |)rohibitcd,  see  Stark.  C  P.  113. 

{/;)  As  tr)  the  words  by  wtiieh  the  iustrument  is  usually  introduced,  sec  an/p,  p.  1 10;  Stark. 
C.  P.,  IO;j  ;   Lyon's  case.  Leach  GJG. 


FORGERY.  155 

felted  bank  note  is  as  foUoweth,  that  is  to  say  {the  note  is  here  set 
out  verbati?n),{i)  with  intent (y)  to  defraud  the  governor  and  com- 
pany of  the  Bank  of  England,  against,  &c.,  and  against,  &c.  {Con- 
clude  as  in  book  1,  chap.  3). 

Second  count.     Putting  away  same. 

That  the  said  J.  B.  heretofore,  that  is  to  say,  on,  &c.,  with  force  and 
arms,  at,  &c.,  did  dispose  of  and  put  away(A')  a  certain  forged  and 
counterfeited  bank  note,  the  tenor  of  which  said  last  mentioned  forged 
and  counterfeited  bank  note  is  as  followeth,  that  is  to  say,(/-)  with 
intent  to  defraud  the  governor  and  company  of  the  Bank  of  England, 
he  the  said  J.  B.,  at  the  said  time  of  his  so  disposing  of  and  putting 
away  the  said  last  mentioned  forged  and  counterfeited  bank  note, 
then  and  there,  to  wit,  on,  &c.,  at,  &c.,  well  knowing  such  last  men- 
tioned note  to  be  forged  and  counterfeited,  against,  &c.,  and  against, 
&,c.     {Conclude  as  in  book  1,  chap.  3), 

Third  count.     Forging  ■promissory  note. 

Feloniously  did  falsely  make,  forge  and  counterfeit,  and  cause  and 
procure  to  be  falsely  made,  forged  and  counterfeited,  and  willingly 
act  and  assist  in  the  false  making,  forging  and  counterfeiting  a  certain 
promissory  note  for  the  payment  of  money,  the  tenor  of  which  said 
last  mentioned  false,  forged  and  counterfeited  nate  is  as  followeth, 
that  is  to  say  {note  as  before),  with  intention  to  defraud  the  governor 
and  company  of  the  Bank  of  England,  against,  &c.,  and  against,  &c. 
[Conclude  as  in  book  1,  chap.  3). 

Fourth  count.     Putting  away  same. 

Feloniously  did  dispose  of  and  put  away  a  certain  false,  forged 
and  counterfeited  promissory  note  for  the  payment  of  money,  the 
tenor  of  which  said  last  mentioned  false,  forged  and  counterfeited 
note  is  as  followeth,  that  is  to  say  {note,  as  before),  with  intent  to 
defraud  the  governor  and  company  of  the  Bank  of  England,  he  the 
said  J.  B.,  at  the  said  time  of  his  so  disposing  of  and  putting  a\vay 
the  said  last  mentioned  false,  forged  and  counterfeited  note,  then  and 
there,  tO/Wit,  on,  &c.,  at,  &c.,  well  knowing  the  same  last  mentioned 
note  to  be  false,  forged  and  counterfeited,  against,  &c.,  and  against, 
&c.     {Conclude  as  in  book  1,  chap.  3). 

Fifth  count.     Same  as  first,  with  intent  to  defraud  J.  S. 

Feloniously  did  forge  and  counterfeit  a  certain  other  bank  note,  the 
tenor  of  which  said  last  mentioned  forged  and  counterfeit  bank  note 
is  as  foUoweth,  that  is  to  say  {note,  as  before),  with  intent  to  defraud 
one  J.  S.,  against,  &,c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Sixth  count.     Putting  away  same. 

Feloniously  did  dispose  of  and  put  away  a  certain  forged  and 
counterfeited  bank  note,  the  tenor  of  which  said  last  mentioned 
forged  and  counterfeited  bank  note  is  as  followeth,  that  is  to  say 

(t)  As  to  the  accuracy  with  which  the  forged  writing  should  be  set  out,  see  p.  131-2-3. 
{j )  See  Stark.  C.  P.  121,  122,  199,  as  to  the  general  necessity  for  averring  an  intent  to 
defraud  in  case  of  perjury,  the  form  of  the  averment,  and  the  eficcts  of  variance. 
(/:)  According  to  the  words  of  the  act  45  Geo.  V.  c.  89,  s.  2. 
{L )  Setting  out  the  note. 


156  OFFENCES  AGAIN'ST   PROPERTY. 

{note,  Of!  bifore),  with  intput  to  defraud  the  said  J.  S.,  he  the  said  J. 
B.,  at  the  time  of  his  so  disposing  of  and  putting  away  llie  said  last 
mentioned  forged  and  counterfeited  bank  note,  then  and  tliere,  to  wit, 
on,  &.C.,  well  knowing  such  last  mentioned  note  to  be  forged  and 
counterfeited,  against,  &c.,  and  against,  &c.  {Conclude  as  in  book 
1 ,  chap.  3). 

Seventh  count.     Same  as  second,  with  intent  to  defraud  J.  S. 

Feloniously  did  falsely  make,  forge  and  counterfeit,  and  cause  and 
procure  to  be  falsely  made,  forged  and  counterfeited,  and  willingly 
act  and  assist  in  the  false  making,  forging  and  counterfeiting  a  cer- 
tain other  promissory  note  for  the  payment  of  ^iioney,  the  tenor  of 
which  said  last  mentioned  forged  and  counterfeited  note  is  as  follow- 
eth,  that  is  to  say  (note,  as  before),  with  intention  to  defrauds. the  said 
J.  S.,  against,  &c.,  and  against,  &c.    {^Conclude  as  in  book  1,  chap.  3). 

Eighth  count.     Putting  away  same. 

Feloniously  did  dispose  of  and  put  away  a  certain  other  false, 
forged  and  counterfeited  promissory  note  for  payment  of  money,  the 
tenor  of  which  said  last  mentioned  false,  forged  and  counterfeited 
note  is  as  folio weth,  that  is  to  say  {note,  as  before),  with  intention  to 
defraud  the  said  J.  S.,  the  said  J.  B.,  at  the  said  time  of  his  so  dis- 
posing of  and  putting  away  the  said  last  mentioned  false,  forged  and 
counterfeited  note,  then  and  there,  to  wit,  on,  &c.,  well  knowing  the 
same  last  mentioned  note  to  be  false,  forged  and  counterfeited,  against, 
&c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Forging  a  certificate  granted  by  a  collector  of  the  customs.{m) 

The  jurors  of  the  United  States  of  America,  within  and  for  the  cir- 
cuit and  district  aforesaid,  on  their  oath  present,  that  late  of 
the  City  and  County  of  New  York,  in  the  circuit  and  district  aforesaid, 
heretofore,  to  wit,  on,  &c.,  with  force  and  arms,  at  the  City  of 
New  York,  in  the  Southern  District  of  New  York  aforesaid,  and 
within  the  jurisdiction  of  this  court,  feloniously  did  falsely  make, 
forge  and  counterfeit  a  certain  official  document,  granted  by  a  col- 
lector of  customs  by  virtue  of  his  office,  to  wit,  an  official  document 
granted  by  the  collector  of  the  customs  for  the  Port  and  District  of 
the  City  of  New  York  {insert  averment  to  the  ejfect  that  the  col- 
lector, as  such,  was  charged  with  the  duties  of  supervisor  of  the 
revenue),  which  said  false,  forged  and  counterfeited  official  document 
is  as  follows,  that  is  to  say  {here  insert  the  document  as  altered), 
with  intent  to  defraud  one  against,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Second  count. 

{Same  as  first  count,  substituting):  "  with  intent  to  defraud  some 


(m)  This  form  was  sustained  by  the  District  Court  for  the  Soutlicrn  District  of  New- 
York,  and  was  licld  bad  in  the  Circuit  Court,  for  want  of  an  uverment  that  the  collector 
h-id  l)Cf;n  charfrcd  with  the  duties  of  Kni)crvisor  of  the  revenue;  see  Schruycr's  case,  New 
York,  1817.  \',y  inakiiifr  the  necessary  uverment,  in  conformity  with  the  act  of  congress, 
the  form  in  the  text  will  i)robably  he  found  correct. 


rOR^ERy.  157 

person  of  persons  to  the  jurors  aforesaid  unknown," /or  "  with  intent 
to  defraud  one  .") 

Third  count.     Causing  and  procuring  forgery,  SfC. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  present, 
that  late  of  the  Gity  and  County  of  New  York,  in  the  circint 

and  district  aforesaid,  heretofore,  to  wit,  on,  &c.,  with  force 

and  arms,  at  the  City  of  New  York,  in  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  feloniously  did  falsely 
make,  forge  and  counterfeit,  and  cause  and  procure  to  be  falsely 
made,  forged  and  counterfeited,  and  willingly  aid  and  assist  in  falsely 
making,  forging  and  counterfeiting  a  certain  official  document,  granted 
by  a  collector  of  customs  by  virtue  of  his  office  {insert  here  averment 
in  brackets,  as  in  last  count),  to  wit,  an  official  document  granted 
by  the  collector  of  the  customs  for  the  Port  and  District  of  the  City 
of  New  York,  which  said  false,  forged  and  counterfeited  official  docu- 
ment is  as  follows,  that  is  to  say  [as  in  first  and  second  counts  men- 
tioned), with  intent  to-  defraud  one  against,  &c.,  and  against. 
&c.     {Conclude  as  in  book  1,  chap.  3). 

Fourth  count. 

{Same  as  third  count,  substituting):  "with  intent  to  defraud  some 
person  or  persons  to  the  said  jurors  unknown,"  for  "  with  intent  to 
defraud  one  ." 

Fifth  count.     Altering,  <^c. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  pre- 
sent, that  late  of  the  City  and  County  of  New  York,  in  the 
circuit  and  district  aforesaid,  heretofore,  to  wit,  on,  &c.,  with 
force  and  arms,  at  the  City  of  New  York,  in  the  circuit  and  district 
aforesaid,  and  Within  the  jurisdiction  of  this  court,  feloniously  did 
falsely  alter  a  certain  official  document  granted  by  a  collector  of  the 
customs  by  virtue  of  his  office,  to  wit,  a  certain  official  document 
granted  by  the  collector  of  the  customs-  for  the  Port  and  District  of 
the  City  of  New  York  {insert  here  averment  in  brackets,  as  before)., 
which  said  falsely  altered  official  document  is  in  the  words  following, 
that  is  to  say  {here  repeat  the  document  as  altered,  word  for  word), 
with  intent  to  defraud  the  United  States  of  America,  against,  &.c.,  and 
against,  &.c.     {Conclude  as  in  book  1,  chap.  3). 

Sixth  count. 

{Same  as  fifth  count,  substituting) :  "  with  intent  to  defraud  one 
,"/or  "  with  intent  to  defraud  the  United  States  of  America." 

Seventh  count. 

{Sa7ne  as  sixth  count,  substituting) :  "  with  intent  to  defraud  some 
person  or  persons  to  the  jurors  aforesaid  as  yet  unknown," /or  "  with 
intent  to  defraud  one  ." 

Eighth  count.     Altering,  <^c.,  averring  specially  the  alterations. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  pre- 
sent, that  late  of  the  City  and  County  of  New  York,  in  the  cir- 
cuit and  district  aforesaid,  heretofore,  to  wit,  on,  &c.,  having 
\n  his  possession  a  certain  official  document  granted  by  a  collector  of 
the  customs,  by  virtue  of  his  olHce,  {insert  averinent  in  brackets  in 
first  count),  to  wit,  an  official  document  granted  by  the  collector  of 
the  customs  for  the  Port  and  District  of  the  City  of  New  York,  which 
14 


1''>S  OFFENCES  AGAINST  PROPERTY. 

.s;iid  official  document  granted  as  aforesaid,  was  when  so  granted,  in 
the  words  and  figures  following,  that  is  to  say,  [here  insert  complete 
copy  of  original  document,  before  any  alterations  were  made  in  it), 
he  the  said  then  and  tliere,  that  is  to  say,  on,  &c.,  with  force  and 

arms,  at,  &c.,  and  within  the  jurisdiction  of  this  court,  feloniously  did 
falsely  alter  the  said  official  document,  by  then  and  there  falsely  al- 
tering the  figure  before  written,  in  the  number  in  the 
said  official  document,  and  by  falsely  altering  the  figure  before 
written  in  in  the  said  official  document,  and  by  then  and  there 
falsely  making,  forging  and  counterfeiting  upon  the  said  official  docu- 
ment in  the  place  of  the  said  figure  before  written  in  the  said 
number  in  the  said  official  document,  the  figure  and  by 
then  and  there  falsely  altering  in  the  place  of  the  said  figure  in 
before  written  in  said  in  the  said  official  document  the 
figure  by  reason  and  by  means  of  which  said  false  alteration 
of  the  said  figure  and  of  the  said  figure  and  of  falsely 
making,  forging  and  counterfeiting  upon  the  place  of  the  said  figure 

the  figure  and  upon  the  place  of  the  said  figure 

the  figure  the  said  number  before  written  in  the  said 

olficial  document  did  become,  import  and  signify  and  the  said 

before  written  in  the  said  official  document,  did  become,  im^ 
port  and  signify  (or  otherwise,  according  to  the  peculiarities 

of  the  document),  which  said  falsely  altered  official  document  is  in 
the  words  and  figures  following,  that  is  to  say,  {here  insert  the  docu- 
ment  as  altered),  with  intent  to  defraud  one  against,  &c.,  and 

against,  &,c.     [Conclude  as  in  book  1,  chap.  3).  , 

Ninth  count.     Same  in  another  shape. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  late  of  the  City  and  County  of  New  York,  in  the 
circuit  and  district  aforesaid,  heretofore,  to  wit,  on,  &c.,  having 
in  his  possession  a  certain  official  document  granted  by  a  collector  of 
the  customs  by  virtue  of  his  office,  to  wit,  an  official  document  grant- 
ed by  the  collector  of  the  customs  for  the  Port  and  District  of  the 
("ity  of  New  York,  [insert  here  averment  in  brackets  in  first  count), 
which  said  official  document,  granted  as  aforesaid,  was  when  so 
granted  in  the  words  and  figures  following,  that  is  to  say,  {insert 
document  as  in  eighth  count),  he  the  said  then  and  there,  that 
is  to  say,  on,  &c.,  aforesaid,  with  force  and  arms,  at  the  City  of  New 
York,  in  the  circuit  and  district  aforesaid,  and  within  the  jurisdiction 
of  this  court,  feloniously  did  falsely  alter  the  said  official  document 
by  then  and  there  falsely  altering,  &c.,  [as  in  eighth  count  specified), 
which  said  falsely  altered  official  document  is  in  the  words  and 
figures  following,  that  is  to  say,  [here  insert  copy  of  document  as 
altered),  with  intent  to  defraud  some  person  or  persons  to  the  jurors 
;i foresaid  unknown,  against,  &c.,  and  against,  &c.  [Conclude  as  in 
book  1,  chap.  3). 

Tentfi  count.     Uttering  certificate  as  forged. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  pre- 
sent, that  late  of  the  City  and  County  of  New  York,  in  the 
rircuit  and  district  aforesaid,  heretofore,  to  wit,  on,  &c.,  with 
force  and  arms,  at  the  City  of  New  York,  in  the  circuit  and  district 


FORGERY.  159 

aforesaid,  and  within  the  jurisdiction  of  this  court,  feloniously  did 
pass,  utter  and  publish  a  certain  false,  forged  and  counterfeited  olfi- 
cial  document,  purporting  to  be  granted  by  a  collector  of  the  customs 
by  virtue  of  his  office,  to  wit,  an  official  document  purporting  to  be 
granted  by  the  collector  of  the  customs  for  the  Port  and  District  of 
tlie  City  of  New  York,  [insert  here  averment  in  brackets  in  first 
count),  by  virtue  of  his  office,  which  said  falsely  altered  official  docu- 
ment is  as  follows,  that  is  to  say,  [here  insert  copy  of  document  as 
altered),  with  intent  to  defraud  the  United  States,  he  the  said 
at  the  time  of  his  so  passing,  uttering  and  publishing  the  said  last 
mentioned  falsely  altered  official  document,  then  and  there,  to  wit, 
on,  &c.,  at  the  said  City  of  New  York,  in  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  well  knowing  such  last 
mentioned  official  document  to  be  falsely  altered  as  aforesaid,  against, 
&,c.,  and  against,  &,c.     {Conclude  as  in  book  1,  chap.  3). 

Eleventh  count. 

(Same  as  tenth  count,  substituting):  "with  intent  to  defraud  one 
,"  for  "  with  intent  to  defraud  the  United  States." 

Tivelfth  count. 

(Same  as  eleventh  count,  substituting):  "with  intent  to  defraud 
some  person  or  persons  to  the  jurors  aforesaid  as  yet  unknown," /or 
"  with  intent  to  defraud  one  ." 

Thirteenth  count.     Uttering  ceiiificate  as  altered. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  pre- 
sent, that  late  of  the  City  and  County  of  New  York,  in  the 
circuit  and  district  aforesaid,  heretofore,  to  wit,  on,  &c.,  with 
force  and  arms,  at  the  City  of  New  York,  in  the  circuit  and  district 
aforesaid,  and  within  the  jurisdiction  of  this  court,  feloniously  did 
attempt  to  pass,  utter  and  publish  a  certain  falsely  altered  official 
document,  purporting  to  be  granted  by  a  collector  of  the  customs  by 
virtue  of  his  office,  to  wit,  purporting  to  be  an  official  document 
granted  by  the  collector  of  the  customs  for  the  Port  and  District  of 
the  City  of  New  York,  (insert  here  averment  in  brackets  in  first 
count),  which  said  falsely  altered  official  document  is  as  follows,  that 
IS  to  say,  (here  insert  a  copy  of  the  document  as  altered),  with  in- 
tent to  defraud  the  United  States  of  America,  he  the  said  at  the 
said  time  of  his  so  passing,  uttering  and  publishing  the  said  last  men- 
tioned falsely  altered  official  document,  then  and  there,  to  wit,  on, 
&c.,  at  the  City  of  New  York,  in  the  circuit  and  district  aforesaid, 
and  within  the  jurisdiction  of  this  court,  well  knowing  such  last  men- 
tioned official  document  to  be  falsely  altered,  against,  &c.,  and  against, 
&.C.     (Conclude  as  in  book  1,  chaj).  3). 

Fourteenth  count. 

(Same  as  thirteenth  count,  substituting) :  "  with  intent  to  defraud 
one  ,"  for  "  with  intent  to  defraud  the  United  States  of  Ame- 

rica." 

Fifteenth  count. 

(Same  as  fourteenth  count,  substituting):  "with  intent  to  defraud 
siMue  person  or  persons  to  the  jurors  aforesaid  as  yet  unknown,"  for 
"  with  intent  to  defraud  one  ." 


1^>0  OFFEVCES  AGAINST  PROPERTY. 

Forging  a  treasury  noPe^ 

Southern  District  of  New  York,  ss.  The  jurors  of  the  United  States 
of  America,  within  and  for  the  circuit  and  district  aforesaid,  on  their 
oath  present,  that  late  of  the  City  and  County  of  New  York,  in 

tlie  circuit  and  district  aforesaid,  heretofore,  to  wit,  on,  &c., 

with  force  and  arms  at  the  City  of  New  York,  in  the  circuit  and  dis- 
trict aforesaid,  and  within  the  jurisdiction  of  this  court,  feloniously  did 
falsely  make,  forge  and  counterfeit  a  certain  treasury  note,  which  said 
false,  forged  and  counterfeit  treasury  note  is  as  follows,  that  is  to  say, 
(here  insert  a  perfect  copy  of  the  note  as  counterfeited),  on  w\\'\ch 
said  note  was  endorsed  •'  "  with  intent  to  defraud  the  United 

States  of  America,  against,  &,c.,  and  against,  &:c.  [Conclude  as  in 
book  \,  chap.  3). 

Second  count. 

(Sarfie  as  frst  count,  substituting):  "  w'llh  intent  to  defraud  one 
,"/or  "  with  intent  to  defraud  the  United  States  of  America." 

Third  count. 

{Same  as  second  count,  substituting):  "with  intent  to  defraud 
some  person  or  persons  to  the  jurors  aforesaid  unknown,  for  "  with 
intent  to  defraud  one  ." 

Fourth  count.     Causing  and  'procuring,  <^c. 

And  the  jurors  aforesaid  on  their  oath  aforesaid,  do  further  present, 
that  ,  late  of  the  City  and  County  of  New  York,  in  the  circuit 

and  district  aforesaid,  {state  occupation),  heretofore,  to  wit,  on,  &c., 
with  force  and  arms,  at  the  City  of  New  York,  in  the  circuit  and  dis- 
trict aforesaid,  and  within  the  jurisdiction  of  this  court,  feloniously 
did  falsely  make,  forge  and  counterfeit,  and  cause  and  procure  to  be 
falsely  made,  forged  and  counterfeited,  and  willingly  aid  and  assist  in 
falsely  making,  forging  and  counterfeiting,  a  certain  instrument  for  the 
payment  of  money,  called  a  treasm-y  note,  which  said  last  mentioned 
false,  forged  and  counterfeited  instrument,  for  the  payment  of  money, 
called  a  treasury  note,  is  as  follows,  {insert  copy  of  note  as  in  pre- 
ceding counts),  on  which  said  note  was  then  and  there  endorsed 
"  ,"  with  intent  to  defraud  the  United   States  of  America, 

against,  &c.,  and  against,  &c.  {Conclude  as  in  book  1,  chap.  3). 

Fijth  count.     Altering,  SfC. 

And  the  jurors  aforesaid  on  their  oath  aforesaid,  do  further  present, 
that  ,  late  of  the  City  and  County  of  New  York,  in  the  circuit 

and  district  aforesaid,  heretofore,  to  wit,  on,  &c.,  having  in  his 

possession  a  certain  treasury  note,  in  the  words,  letters  and  figures 
following,  that  is  to  say  {insert  copy  of  note  as  in  preceding  counts), 
which  said  note  was  endorsed  "  ,"  he  the  said  then  and 

there,  that  is  to  say,  on,  &c.,  with  force  and  arms  at  the  City  of  New 
York  in  the  circuit  and  district  aforesaid,  and  within  the  jurisdiction 
of  ihis  court,  feloniously  did  alter,  forge  and  counterfeit  the  said  trea- 
sury note,  by  then  and  there  falsely  obliterating  and  defacing  the 
figures  {or  othcrivise),  before  written  in  in  the  said  trea- 

sury note,  and  by  then  and  there  falsely  making,  forging  and  coun- 
terfeiting upon  the  said  treasury  note,  in  the  place  of  the  said 
before  written  in  in  the  said  treasury  note,  the  by  reason 


FORGERY. 


IGl 


and  by  means  of  which  said  obUterating  and  defacing  of  the  said 
in  the  said  treasury  note,  and  of  falsely  making,  forging  and  counter- 
feiting upon  the  place  of  the  said  in  said  treasury  note,  the 
the  said  before  written  in  in  said  treasury  note,  did  be- 
come, import  and  signify  ,  which  said  altered,  forged  and  coun- 
terfeited treasury  note  is  as  follows,  that  is  to  say,  (^ere  insert  a  com- 
plete copy  of  the  note,  as  in  preceding  counts),  on  which  said  note 
was  endorsed  "  ,"  with  intent  to  defraud  the  United  States  of 
America,  against,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Sixth  count.     Passing  note,  SfC. 

And  the  jurors  aforesaid  on  their  oath  aforesaid,  do  further  present, 
that  ,  late  of  the  City  and  County  of  New  York,  in  the  circuit 

and  district  aforesaid,  ,  heretofore,  to  wit,  on,  &c.,  with  force 

and  arms  at  the  City  of  New  York  in  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  feloniously  did  pass, 
utter  and  publish  a  certain  false,  forged  and  counterfeited  treasury 
note,  which  said  false,  forged  and  counterfeited  treasury  note  is  as 
follows,  that  is  to  say,  (here  i?isert  copy  of  treasury  note  as  in  pre- 
ceding counts),  on  which  said  note  was  endorsed  "  ,"  with  in- 
tent to  defraud  the  United  States  of  America,  he  the  said  at 
the  time  of  his  so  passing,  uttering  and  publishing  the  said  last  men- 
tioned false,  forged  and  counterfeited  treasury  note,  then  and  there, 
to  wit,  on,  &c.,  at  the  said  City  of  New  York  in  the  circuit  and  dis- 
trict aforesaid,  and  within  the  jurisdiction  of  this  court,  well  knowing 
such  last  mentioned  treasury  note,  to  be  false,  forged  and  counterfeit- 
ed, against,  &c.,  and  against,  &.c.  {Conclude  as  in  book  1,  chap.  3.) 

Seventh  count. 

{Same  as  sixth  count,  substituting) :  "  with  intent  to  defraud  one 
,"  for  "  with  intent  to  defraud  the  United  States  of  /Vmerica." 

Eighth  count.     Same  as  sixth,  in  another  shape. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid, do  further  present, 
that  ,  late  of  the  City  and  County  of  New  York,  in  the  circuit 

and  district  aforesaid,  heretofore,  to  wit,  on,&.c.,  with  force  and 

arms  at  the  City  of  New  York,  in  the  circuit  and  district  aforesaid, 
and  within  the  jurisdiction  of  this  court,  feloniously  did  pass,  utter 
and  publish  a  certain  false,  forged  and  counterfeited  treasury  note  of 
which  the  purport  is  as  follows,  that  is  to  say,  [here  insert  a  correct 
and  complete  copy  of  the  treasury  note  as  counterfeited),  which  said 
note  was  then  and  there  endorsed,  "  ,"  with  intent  to  defraud 

some  person  or  persons  to  the  jurors  aforesaid  as  yet  unknown,  he 
the  said  at  the  time  of  his  so  passing,  uttering  and  publishing 

the  said  last  mentioned  false,  forged  and  counterfeited  treasury  note, 
then  and  there,  to  wit,  on,  &c.,  at  the  said  City  of  New  York,  in  the 
circuit  and  district  aforesaid,  and  within  the  jurisdiction  of  this  court, 
well  knowing  such  last  mentioned  treasury  note  to  be  false,  forged 
and  counterfeited,  against,  &.c.,and  against,  &c.  {Conclude  as  in  book 
1,  chap.  3). 

Last  count. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  pre- 
sent, that  the  Southern  District  of  New  York  in  the  Second  Circuit, 

11^ 


ir>2  OFFEXCES  AGAINST  PROPERTY. 

is  the  circuit  and  district  in  which  the  said  was  first  appre- 

lieiided  lor  the  said  offence. (^/^»^) 

Feloniously  allerivg  a  bank  note.{n) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  having  in  his  possession  a  bank  note, 
whose  tenor  follows,  that  is  to  say,  {set  out  the  note),  feloniously  did 
alter  tiie  said  bank  note  by  then  and  there  falsely  obliterating  and  de- 
facing the  letters  een  before  printed  in  the  word  fifteen  in  the  said 
bank  note,  and  also  the  letters  een  before  printed  in  the  word  Jiftee?!, 
in  white  letters,  on  a  black  ground  underneath  the  said  bank  note, 
and  by  then  and  there  falsely  making,  forging  and  counterfeiting  upon 
the  said  bank  note,  in  the  place  of  the  first  mentioned  letters  een  be- 
fore printed  in  the  word  fifteen  in  the  said  bank  note,  the  letter  y; 
and  also  by  then  and  there  falsely  making,  forging  and  counterfeiting 
upon  the  said  bank  note,  in  the  place  of  the  said  letters  eeii,  before  print- 
ed ill  the  word  ff teen  in  white  letters  on  black  ground  underneath  the 
said  bank  note,  another  letter  y,  by  reason  and  means  of  which  said 
obliterating  and  defacing  the  letters  een~,  before  printed  in  the  said 
word  fifteen  in  the  said  bank  note,  and  also  the  letters  eeii,  being  be- 
fore printed  in  the  said  word  fifteen,  in  white  letters  on  a  black  ground 
underneath  the  said  bank  note,  and  of  falsely  making,  forging  and 
counterfeiting  upon  the  place  of  the  said  letters  een,  before  printed  in 
tlie  word  fifteen,  m  the  said  bank  note  the  letter  y  ;  the  letters  j?//, 
so  remaimng  of  the  said  word  fifteen  before  printed  in  the  said  bank 
note,  with  the  said  first  mentioned  letter  y,  so  falsely  made,  forged  and 
counterfeited  as  aforesaid,  did  become,  import  and  signify  ^/"/y;  and 
the  letters  7?/7,  so  remaining  of  the  said  fifteen  before  printed  in  white 
letters  on  a  black  ground  underneath  the  said  last  mentioned  bank 
note,  with  the  said  other  y,  so  falsely  made,  forged  and  counterfeited 
as  aforesaid,  did  become,  import  and  s\%x\\{y  fifty,  which  said  altered 
bank  note  is  in  the  words,  letters  and  figures  following,  that  is  to  say, 
{set  out  the  7iote  as  altered),  with  intent  to  defraud,  &:c.(o) 

Having  in  possession  forged  hank  notes  williout  lauful  excuse,  know- 
ing the  same  to  be  forged. (oo) 

That  defendant  feloniously,  knowingly  and  wittingly,  and  without 
lawful  excuse,  had  in  his  possession  and  custody  divers  forged  and 
counterfeited  bank  notes,  that  is  to  say,  one  forged  and  counterfeited 
bank  note,  the  tenor  of  which  said  Ibrged  and  counterfeited  bank 
note  is  as  follows,  that  is  to  say,  (here  the  note  is  set  out),  and  one 
other  forged  and  counterfeited  bank  note,  the  tenor  of  which  said  last 
mentioned  forged  and  counterfeited  bank  note  is  as  follows,  that  is  to 
say,  [here  the  other  note  is  set  out),  he  the  said  A.  B.  then  and  there, 

(.mm)  Sec  nnte,  p.  17,  97,  123.  {n)  Stark.  C.  P.  458. 

('))  Allege  in  one  count  an  intention  to  defraud  the  governor  and  company  of  the  Bank 
of  England;  in  another,  an  intention  to  defraud  the  i)crson  to  whom  it  is  paid,  &c. ;  add 
other  count  alligiMg  tlie  forgery  of  the  bank  note  as  altered,  and  for  altering  witli  inleiitto 
defraud,  iVc.     See  form,  ante,  p.  15G-7. 

(00;  Stark.  C.  P.    454. 


FORGERV.  163 

to  wit,  on,  &c.,  at,  &;c.,  well  knowing  the  same  notes  to  be  forged  and 
counterfeited,  against,  Slc,  and  against,  &c.  [Coiicliide  us  in  book 
1,  chap.  3). 

Second  couvt. 

Feloniously,  knowingly,  wittingly  and  without  lawful  excuse,  had 
in  his  possession  and  custody,  a  certain  other  forged  and  counterfeited 
bank  note,  the  tenor  of  which  said  last  mentioned  forged  and  coun- 
terfeited bank  note  is  as  followeth,  that  is  to  say,  [the  first  note  in 
the  preceding  count  is  Uere  set  out  again),  he  the  said  A.  B.  then 
and  there,  to  wit,  on,  &c.,  at,  &c.,  well  knowing  the  same  last  men- 
tioned note  to  be  forged  and  counterfeited,  against,  &c.,  and  against, 
&c.     {Conclude  as  in  book  1,  chap.  3). 

For  being  possessed  of  ten  counterfeit  bank  bills  at  the  same  time,  with 
intent  to  pass  the  same,  in  Massachusetts.{p) 

The  jurors,  &c.,  upon  their  oath  present,  that  A.  B.,  of,  &c.,  at, 
&c.,  had  in  his  custody  and  possession  {at  the  same  time  more 
thun),{q)  ten  false,  forged  and  counterfeit  bank  bills,  purporting  to  be 
bank  bills,  payable  to  the  bearers  thereof,  and  to  be  signed  in  behalf 
of  the  President,  Directors  and  Company  of  the  (Boston)  Bank,  the 
same  being  a  corporation  by  law,  licensed  and  authorized  as  a  bank 
within  that  commonwealth,  which  said  bank  bills  are  of  the  purport 
and  effect  following,  to  wit,  one  of  said  bank  bills  being  of  the  follow- 
ing purport  and  effect,  to  wit,(r)  {here  you  must  insert  a  true  copy 
of  all  and  each  of  the  ten  bills ;  after  insertitig  a  true  copy  of  the 
first,  go  on  to  say,  one  other  of  said  bills  being  of  the  following 
purport  and  effect,  and  so  on  with  the  ivhole  of  theui)  ;  and  that  he 
the  said  A.  B.  did  then  and  there  willingly  aid  and  assist  in  rendering 
current  as  true,  each  of  the  false,  forged  and  counterfeit  bank  bills 
aforesaid,  knowing  them  and  each  of  them  to  be  ftdse,  forged  and 
counterfeit  as  aforesaid,  with  intent  to  utter  and  pass  the  same,  and 
thereby  to  injure  and  defraud  the  President,  Directors  and  Company 
of  the  said  (Boston)  Bank;  against,  &c.,  and  contrary,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

Uttering  and  passing  a  counterfeit  bank  bill,  under  s.  4  c.  96  of  Revised 
Statutes  of  Vermont.{s) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  wittingly,  deceitfully  and  unlaw- 
fully did  utter,  pass  and  give  in  payment  to  one  E.  W",  F.,  of  iNIendon, 

(j>)  Davis'  Prec.  127. 

{q)  This  averment,  wliicli  in  Mr.  Davis'  form  is  omitted,  is  made  essential  by  Edwards 
V.  Com.,  19  Pick.  124. 

Wiiere  the  indictment  charges  the  defendant,  under  Rev.  Stat.  c.  127,  s.  5,  and  in  the 
words  of  the  text,  witli  havingr  "  more  than,  &c.,"  forged  notes,  &,c.,  it  would  seem  that  a 
CDnviclion  may  be  sustained  on  evidence  of  l)is  having  in  possession  one  forged  note,  &,c., 
and  sentence  imposed  under  Rev.  Stat.  c.  127,  s.  8. 

(r)  See  Brown  v.  Com.,  8  Mass.  R.  59;  Com.  v.  Houghton,  ib.  107. 

(s)  State  V.  Williiris,  17  Verm.  151.  On  this  indictment,  on  a  demurrer  in  the  County 
Court,  tiiere  was  a  judgment  for  the  state,  and  in  this  shape  the  case  went  up  to  the  Su- 
preme Court. 

"  The  demurrant  insists  (said  Bui  net  J.,  in  delivering  the  opinion  of  that  case),  that  the 


16  t  OFFEXCES  AGAINST  PROPERTV. 

in  the  State  of  Vermont,  one  certain  false,  forged  and  counterfeited 
bank  note,  which  said  note  was  made  in  imitation  of,  and  did  then 

indictment  is  bad  for  sundry  reasons.  It  is  said,  that  there  is  no  allegation  in  it  of  the 
existence  of  the  bank.  If  this  was  so,  the  objection  would  have  been  well  taken.  The 
allegation  is,  that  the  respondent  did  pass,  &.c.,  one  certain  false,  forgfed  and  counterfeit 
h'lnk  note,  which  said  note  was  made  in  imUalion  of,  and  did  purport  to  be,  a  bank  note, 
issued  by  the  President,  Directors  and  Company  of  the  Bank  of  Cumberland,  by  and  under 
the  authority  of  the  legislature  of  the  State  of  Maine,  one  of  the  United  States  of  America. 
The  statute  of  1818,  Slade's  ed.  261,  provides,  that,  if  any  person  shall  counterfeit,  &,c , 
any  bill  or  note,  issued  by  tlie  President,  Directors  and  Company  of  the  Bank  of  the  United 
States,  or  by  the  directors  of  any  other  bank,  by  or  under  the  legislature  of  any  of  the  United 
States  of  America,  he  shall,  on  conviction,  be  confined,  &c.  In  tlie  Rev.  Stat.  p.  434,  the 
form  of  the  expression  is  somewiiat  changed,  and  prohibits  the  counterfeiting  any  bank 
bill  or  promissory  note,  issued  by  any  banking  com[)any,  incorporated  by  the  congress  of 
the  United  States,  or  by  the  legislature  of  any  state  or  territory  of  the  United  States.  No 
doubt,  under  the  Revised  Statutes,  the  bank  must  be  an  incorporated  institution,  and  it 
must,  in  substance,  be  so  alleged  in  the  indictment.  So  1  conceive,  that,  under  the  statute 
of  1818,  the  bill  must  have  been  counterfeited  upon  an  incorporated  institution,  and  liiut 
the  Revised  Statutes  were  not  designed  to  introduce  any  new  rule.  The  expressions,  a 
honk  note,  or  bill,  issued  by  and  under  the  authority  of  the  legislature  of  one  of  the  United 
States  of  America,  imply,  by  necessary  implication,  that  it  was  issued  by  an  incorporated 
i'lslitution,  and  consequently  such  an  averment  in  an  indictment  must  be  held  sufficient. 
Tliis  indictment  is  conformable  to  the  precedent  furnished  by  Judge  Aikens,  in  his  book 
of  forms,  as  applicable  to  the  statute  of  1818,  and  which,  I  believe,  was  introduced  into 
general  use.  If  the  Revised  Statutes  introduced,  in  this  particular,  no  new  rule  of  law, 
t  len  an  indictment  under  the  old  statute  would  be  good  under  the  Revised  Statutes. 

"  It  is  said,  that,  as  the  indictment  charges  the  otfenee  to  consist  in  uttering  and  giving 
in  payment  a  certain  counterfeit  bank  note,  and  as  the  statute  creating  tlie  offence  makes 
it  to  consist  in  uttering  and  giving  in  payment  any  counterfeit  bank  bill  or  promissory 
note,  the  off"ence  in  the  statute  is  not  well  described  in  the  indictment.  The  words  of  the 
stiitute,  in  the  description  of  the  subject  matter  of  the  offence,  must  be  subst^intially  follow- 
ed, it  is  true,  and  the  offence  be  brought  within  all  the  material  words  of  it.  We  think 
that  the  words  bank  bill  or  promissory  note,  as  used  in  the  statute,  are  synonymous.  The 
words  used  in  the  indictment,  bank  note,  are  also  synonymous  with  bank  bill.  Bank  note, 
b  ink  bill  and  promissory  note,  issued  by  the  directors  of  a  bank  incorporated  by  and  under 
t.'ie  legislature  of  this  state,  mean  the  same  thing.  The  expression,  bank  bill  or  promissory 
note,  in  the  statute,  is  an  evident  tautology;  and  had  the  term,  or  bank  note,  been  also 
added,  it  would,  none  the  less,  have  been  a  tautology.  See  Brown  v.  Com.,  8  Mass.  59, 
and  also  Com.  v.  Carey,  2  Pick.  47. 

"  It  is  further  objected  to  this  indictment,  that  it  is  not  alleged  that  the  bill  was  passed 
as  a  true  hill.  In  an  indictment  upon  a  penal  stiitute  the  prosecutor  must  set  forth  every 
fact  that  is  necessary  to  bring  the  ease  witiiin  the  statute.  The  indictment  in  this  case 
has  four  counts;  the  1st  and  3d  are  for  utterin<r,  passing-  and  givinsr  in  payment.  The 
2d  and  4th  arc  for  having  in  possession  counterfeit  bills  with  an  intention  to  M^/er,  pass  and 
give  in  payment.  The  statute  of  1.5  Geo.  II.  provided,  that,  if  a  person  should  utter,  or 
tender  in  payment,  any  false  or  counterfeit  money,  knowing  the  same  to  be  false  or  coun- 
terfeit, he  should,  on  conviction,  be  subject  to  certain  penalties.  In  the  ease  of  the  Kingt). 
Fr.jnks,  2  Leach  C  L.  614,  the  indictment  charged  the  respondent  simply  with  nliering  a 
piece  oC  false  and  counterfeit  money  ;  and  it  was  held  that  the  offence  was  comi)lete,  even 
thoutfh  it  was  uttered  as  base  coin.  In  that  case  the  indicttnent  did  not  state  the  uttering 
to  have  been  in  payment,  as  and  for  a  piece  of  good  money;  and  if  it  had,  the  evidence  in 
the  case  would  have  rebutted  the  charge.  It  was  considered,  in  that  case,  that,  as  fho 
statute  was  in  the  disjunctive,  the  ulterinrr  and  tende.rin<j;  in  payment  constituted  two  in- 
dependent and  distinct  acts.  So  I  think  our  statute,  ()roviding  against  uttering,  passing, 
or  giving  in  payment  any  false  and  countorfcit  bill,  makes  the  acts  distinct  and  in- 
dependent,  and  that  cither  the  uttering,  passing  or  giving  in  payment,  would  constitute 
an  offence  against  the  statute,  provided  the  respondent  had  a  knowledge  that  the  money 
was  counterfeit. 

"  Whether,  if  this  had  been  an  indictment  simply  upon  the  last  clause,  that  is,  for  giving 
in  paymi nt  a  false  and  counterfeit  bank  bill,  it  would  have  been  necessary  to  have  alleged 
that  it  was  given  in  |)aymaiif,  as  and  for  a  true  bill,  it  is  not  now  nccessury  to  decide.  In 
the  case  State  v.  Randal,  2  AiU.  Hi),  we  have  the  form  of  an  indielment  like  the  present, 
under  theslalule  af  1HI8;  and  it  was  held  siitlicicni.  Neither  in  that  statute,  nor  in  tlic 
Revised  Slulules,  is  il  in.de  a  part  ot"  the  descrijilion  of  tlie  otllnce,  that  the  cuuuleriLit 


FORGE  a  Y.  1C5 

and  there  purport  to  be,  a  bank  note  for  the  sum  of  five  dollars,  issued 
by  the  President,  Directors  and  Company  of  the  Bank  of  Cumber- 
land, by  and  under  the  authority  of  the  legislature  of  the  State  of 
Maine,  one  of  the  United  States  of  America,  made  payable  to  S.  B., 
or  bearer,  on  demand,  numbered  two  hundred  and  seventy-four,  and 
dated  the  first  day  of  September,  in  the  year  of  our  Lord  one  thous- 
and eight  hundred  and  thirty-five,  with  the  name  of  S.  E.  C.  thereto 
subscribed  as  president  of  said  bank,  and  the  name  of  C,  C.  T.,  coun- 
tersigned thereon  as  cashier  of  said  bank,  and  was  in  the  words  and 
figures  following,  that  is  to  say: 

"The  State  No.  974  of  Maine. 

"  The  President,  Directors  and  Company  of  the  Bank  of  Cumber- 
land promise  to  pay  Five  Dollars  to  S.  B.,  or  bearer,  on  demand. 

Portland,  1st  Sept.  1835. 
"  C.  C.  T.,  Cash'r.  S.  E.  C,  Pres't." 

He,  the  said  W.,  then  and  there  well  knowing  the  said  note  to  be 
false,  forged  and  counterfeited  as  aforesaid,  with  intent  to  defraud  the 
said  E.  W.  F.,  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Uttering  a  forged  note  purporting  to  he  issued  by  a  bank  in  another 
state,  under  the  Vermont  statute. 

That  J.  S.,  of,  &c.,  in  said  County  of  Windsor,  on,  &:c.,  with  force 
and  arms,  at,  &c.,  wittingly,  falsely,  deceitfully  and  unlawfully  did 
utter,  pass  and  give  in  payment  to  one  A.  L.,  of,  &,c.,  one  certain 
false,  forged  and  counterfeit  bank  note,  which  said  note  was  m.ade  in 
imitation  of,  and  did  then  and  there  purport  to*be  a  bank  note  for  the 
sum  of  two  dollars,  issued  by  the  President,  Directors  and  Company 
of  the  Suffolk  Bank,  a  banking  company  incorporated  by  and  exist- 
ing under  the  authority  of  the  legislature  of  the  State  of  Massachu- 
setts, one  of  the  United  States,  made  payable  to  E.  C,  or  bearer,  on 
demand,  numbered  one  thousand  four  hundred  and  ninety-one,  and 
dated  Boston,  May  third,  one  thousand  eight  hundred  and  forty-three, 
with  the  name  of  H.  B.  S.  thereto  subscribed  as  president  of  said 
bank,  and  the  name  of  J.  V.  B.  countersigned  thereon  as  cashier  of 
said  bank,  and  was  in  the  words  and  figures  following,  that  is  to  say, 

bill  shall  have  been  uttered,  passed  or  criven  in  payment,  as  and  for  a  true  bill;  and  it  is 
unnecessary  for  us  to  decide  what  would  liave  been  necessary,  if  this  had  been  a  part  of  the 
description  of  the  offence.  The  offence  of  disposing  and  putting  away  forged  bank  notes 
was  held  to  be  complete,  though  the  person,  to  whom  they  were  disposed  of,  was  an  agent 
for  the  bank  to  detect  utierers,  and  applied  to  the  prisoner  to  purchase  f  )rged  bank  notes, . 
and  had  them  delivered  to  him  as  forged  notes,  for  the  purpose  of  disposing  of  them;  R.  & 
R.  154. 

"  It  is  said,  also,  that  the  indictment  is  bad,  because  there  is  a  repugnancy  between  the 
purport  and  tenor  of  t!ie  bill,  as  alleged  in  the  indictment.  We  think  there  is  no  ground 
tor  this  objection.  The  indictment  set  fortli  the  counterfeit  bills  in  their  words  and  figures, 
as  it  was  proper  it  should  do;  and  the  allegation,  that  the  bill,  charged  to  be  forged  in  each 
couni,  was  m:ide  in  imitation  of,  and  did  purport  to  be,  a  bank  note,  issued  by  the  Bank  of 
(Cumberland,  is  nothing  more  than  an  allegation  that  tlie  bill  was  a  fiction,  and  it  is  no 
attempt  to  set  forth  the  forged  bill  according  to  its  purport.  It  may  be  true,  that,  where 
the  pleader  first  sets  out  the  bill  according  to  what  ho  claims  to  be  tfie  legal  purpoit,  and 
afterwards  sets  it  out  according  to  its  tenor,  and  there  is  a  repugnancy,  it  may  be  fatal; 
but  that  principle  docs  not  apply  to  this  indictiiiCMt. 

"  The  result  to  whicli  the  court  have  come,  is  that  tl.c  indictment  is  sufficient." 


106  OFFENCES  AGAINST  PROPERTY. 

{here  set  forth  the  note),  he  the  said  J,  S.  well  knowing,  then  and 
there,  the  said  note  to  be  lalse,  forged  and  counterfeited  as  aforesaid, 
with  intent  to  defraud  the  said  A.  L.,  contrary,  &,c.,  and  against,  &c. 
[Conclude  as  in  book  1,  chap.  3). 

Having  in  possession  forged  note  of  United  States  Bank,  under  the  Ver- 
mont statute.{t) 

That  W.  R.,  late  of  Franklin,  in  the  County  of  Franklin  aforesaid, 
heretofore,  that  is  to  say,  on,  &c.,  with  force  and  arms,  at  Franklin 
aforesaid,  in  the  County  of  Franklin  aforesaid,  feloniously  and  unlaw- 
fully did  have  in  his  possession,  with  an  intention  to  utter,  pass  and 
give  in  payment,  one  certain  false,  forged  and  counterfeited  bank 
note,  which  said  note  was  made  in  imitation  of,  and  did  then  and 
there  purport  to  be,  a  bank  note  for  the  sum  of  ten  dollars,  issued  by 
the  President,  Directors  and  Company  of  the  Bank  of  United  States, 
made  payable  at  their  office  of  discount  and  deposit  in  Charleston,  to 
J.  J.,  president  thereof,  or  to  the  bearer,  on  demand,  numbered  three 
thousand  and  fourteen,  and  dated  at  Philadelphia  the  twentieth  day 
of  January,  in  the  year  of  our  Lord  one  thousand  eight  himdred  and 
twenty-three,  with  the  name  of  L.  C.  thereto  subscribed,  as  president 
of  said  bank,  and  the  name  of  T.  W.  countersigned  thereon  as  cashier 
of  said  bank,  and  was  in  the  words  and  figures  following,  that  is  to 
say,  {here  the  bill  was  set  forth  verbatim).  He  the  said  W.  R.  then 
and  there  well  knowing  the  said  note  to  be  false,  forged  and  counter- 
feited as  aforesaid,  contrary,  &c.,  and  against,  &c.  [Conclude  as  in 
book  1,  chap.  3).  * 

Forgery,  <^'C.,  in  New  York.     Having  in  possession  a  fmged  note  of  a 
corporation. [u) 

That  A.  B.,  late  of  the  Ward  of  the  City  of  New  York,  in 

the  County  of  New  York  aforesaid,  on,  &c.,  with  force  and  arms,  at 
the  Ward  of  the  City  of  New  York,  in  the  County  of  New 

York  aforesaid,  feloniously  had  in  custody  and  possession,  and 

did  receive  from  some  person  or  persons  to  the  jurors  aforesaid  un- 
known, a  certain  I'orged  and  counterfeited  negotiable  promis- 
sory note,  for  the  payment  of  money,  commonly  called  a  bank  note, 
purporting  to  have  been  issued  by  a  certain  corporation  or  company 
called  [setting  out  the  name),  duly  authorized  for  that  purpose  by 
the  laws  of,  &c.,  which  said  last  mentioned  folse,  forged,  &c.,  and 
counterfeited  negotiable  promissory  note  for  the  payment  of  money, 
is  as  follows,  that  is  to  say,  [setting  out  the  note),  with  intention  to 

(t )  State  V.  Riind.il,  2  Aik.  89.  "  In  this  case  it  was  Iicld  tliat  the  offence  of  countqf- 
feitin]^  bills  of  the  Bank  of  tlic  United  States,  of  passirirf.  and  of  knowintjiy  having'  in  pos- 
session siieli  counterfeits,  with  intent  to  pass  thcin,  are  cojrni7,;ii)le  by  the  courts  of  this 
stnle,  nri(i(;r  the  statute  of  this  state  afraiiist  connterfeitinfr,  notwithstanding  tiie  eongres.s 
of  the  United  States,  in  virtue  of  the  eighth  section  of  t.'ic  first  article  of  the  constitution, 
have  legislalc'd  on  the  subject,  and  given  to  the  courts  of  the  United  States  jurisdiction  of 
the  same  offences. 

"  The  jurisdiction  of  the  United  States  courts  under  the  acts  of  congress,  and  of  the  courts 
of  this  stale,  under  the  Htatiite  of  Vermont,  over  tliosc  offences,  are  concurrent  within  ll.is 

Htlltf." 

(u;  This  is  the  ordinary  LI  uik  in  use  in  the  City  of  New  Yorli. 


FORGERY.  167 

litter  and  pass  the  same  as  true,  and  to  permit,  cause  and  procure  the 
same  to  be  so  uttered  and  passed,  with  the  intent  to  injure  and  de- 
fraud one  {setting  out  the  party),  and  divers  other  persons  to 
the  jurors  aforesaid  unknown,  he  the  said  then  and  there 
well  knowing  the  said  last  mentioned  false,  forged  and  coun- 
terfeited promissory  note,  for  the  payment  of  money,  to  be  false, 
forged,  and  counterfeited  as  aforesaid,  against,  &c.,  and  against, 
&LC.     {Conclude  as  in  book  1,  chap.  3). 

Second  count.     Uttering  the  same. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  the  said  A.  B.,  &c.,  afterwards,  to  wit,  on  the  day  and  year 
last  aforesaid,  with  force  and  arms,  at  the  ward,  city  and  county 
aforesaid,  feloniously  and  falsely  did  utter  and  publish  as  true,  with 
intent  to  injure  and  defraud  the  said  C.  D.,  &c.,  and  divers  other  per- 
sons to  the  jurors  aforesaid  unknown,  a  certain  other  false,  forged*, 
and  counterfeited  negotiable  promissory  note  for  the  payment 
of  money,  commonly  called  a  bank  note,  purporting  to  have  been 
issued  by  a  certain  corporation  or  company  called  {giving  name), 
duly  authorized  for  that  purpose  by  the  laws  of  which  said  last 

mentioned  false,  forged,  and  counterfeited  negotiable  promis- 

sory note  for  the  payment  of  money  is  as  follows,  that  is  to  say,  {set- 
ting forth  note  as  above),  the  said  A.  B.,  at  the  same  time  so 
uttered  and  published  the  said  last  mentioned  false,  forged,  and 
counterfeited  negotiable  promissory  note  for  the  payment  of  money 
as  aforesaid,  then  and  there  well  knowing  the  same  to  be  false,  forged, 
and  counterfeited,  against,  &c.,  and  against,  &c.  {Conclude 
as  in  book  1,  chap.  3). 

Forging  an  instrument  for  payment  of  money  under  the  JVeio  York  sla- 
tule.{v) 

That  A.  B.,  late  of  the  Ward  of  the  City  of  New  York,  in 

the  County  of  New  York  aforesaid,  &c.,  on,  &c.,  with  force  and  arms, 
at  the  Ward,  City  and  County  of  New  York  aforesaid,  feloniously 
did  falsely  make,  forge  and  counterfeit,  and  cause  and  procure  to  be 
falsely  made,  forged  and  counterfeited,  and  willingly  act  and  assist 
in  the  false  making,  forging,  and  counterfeiting  a  certain 

for  payment  of  money  which  said  false,  forged  and  counter- 

feited for  payment  of  money  is  as  follows,  that  is  to  say,  (set- 

ting forth  the  instrument),  with  intent  to  injure  and  defraud  {set- 
ting forth  the  jjersons  to  be  defrauded),  and  divers  other  persons  to 
the  jurors  aforesaid  unknown,  against,  &.c.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

Second  count.     Uttering  the  same. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  the  said  A.  B.,  &c.,  afterwards,  to  wit,  on  the  day  and  vear 
last  aforesaid,  with  force  and  arms,  at  the  ward,  city  and  county 
aforesaid,  feloniously  and  falsely  did  utter  and  publish  as  true,  with 
intent  to  injure  and  defraud  the  said  C.  D.,  &c.,  and  divers  other  per- 

(c)  This  is  the  ordinary  blank  in  use  in  tiic  City  of  New  York. 


1G8 


OFFENCES  AGAINST  PROPERTY. 


sons  to  the  jurors  aforesaid  unknown,  a  certain  false  forged  and  coun- 
terfeited for  payment  of  money,  which  said  last  mentioned 
false,  forged,  and  counterfeited  for  payment  of  money,  is 
as  follows,  that  is  to  say,  {setting  forth  instrument  as  above),  the 
said  A.  B.,  &c.,  at  the  said  time  h€  so  uttered  and  published  the  said 
last  mentioned  false,  forged,  and  counterfeited  for  pay- 
ment  of  money  as  aforesaid,  then  and  there  well  knowing  the  same 
to  be  false,  forged  and  counterfeited,  against,  &c.,  and  against, 
&c.     [Conclude  as  in  book  1,  chap.  3). 

Having  in  possession  forged  notes,  dj-c,  imtk  intent  to  defraud,  under 
the  New  York  slaiuie.{w) 

That,  &:c.,  on,  &c.,  at,  &c.,  feloniously  had  in  his  custody  and  pos- 
session, and  did  receive  from  some  person  or  persons  to  the  jurors 
jiforesaid  unknown,  a  certain  false,  forged  and  counterfeited  nego- 
tiable promissory  note  for  the  payment  of  money,  commonly  called  a 
bank  note,  purporting  to  have  been  issued  by  a  certain  corporation 
or  company  called  the  Morris  Canal  and  Banking  Company,  duly 
authorized  for  that  purpose  by  the  laws  of  the  State  of  New  Jersey, 
which  said  last  mentioned  false,  forged  and  counterfeited  negotiable 
promissory  note  for  the  payment  of  money  is  as  follows,  {setting 
forth  7iote  verbatim  et  literatim),  with  intention  to  utter  and  pass 
the  same  to  be  true,  and  to  permit,  cause  and  procure  the  same  to  be 
so  uttered  and  passed,  with  the  intent  to  injure  and  defraud  said 
Morris  Canal  and  Banking  Company,  &c. ;  he  the  said  S.  D.  then  and 
there  well  knowing  the  said  note  to  be  false,  forged  and  counterfeited, 
against,  &,c.     {Conclude  as  in  book  1,  chap.  3). 

Forgery  of  a  note  of  a  hank  incorporated  in  Pennsylvania,  under  the 
Pennsylvania  statule.{x) 

That  A.  B.,  late  of  said  county,  on,  &c.,  at  the  county  aforesaid, 
and  witliin  the  jurisdiction  of  this  court,  with  force  and  arms,  felo- 
niously did  falsely  make,  forge  and  counterfeit,  and  cause  and  pro- 
cure to  be  falsely  made,  forged  and  counterfeited,  a  certain  note  in 
imitation  of,  and  purporting  to  be,  a  note  issued  by  the  order  of  the 
jiresident,  directors  and  company  of  {setting  out  the  name  of  the 
bank),  for  the  sum  of  dollars,  purporting  to  be  signed  by 

president  and  cashier,  payable  to  or  bearer  on  demand, 

dated  one  thousand  eight  hundred  and  the  said 

bank,  then  and  there  being  a  bank  within  this  commonwealth,  incor- 
])orated  in  pursuance  of  an  act  of  the  general  assembly,  which  said 
ialsely  made,  forged  and  counterfeited  note,  partly  written  and  partly 
jtfinted,  is  in  the  words  and  figures  following  {setting  oat  the  note), 
witli  intent  to  defraud  the  said  bank,  contrary,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

(«J)  People  V.  Davis,  21  Wend.  309, 

(x)  For  forjrintr  ilie  notes  fif  a  forei{,m  banlt,  the  aliovc  form  is  pnod  al  common  law, 
f\uV\n\r  out  tlic  word  "  ((;loniously,"  the  avcriiii  nt  of  the  charter  of  the  liard<,  and  ehar^iiig- 
the  intent  to  he  lo  defraud  the  j)ertions  actually  defrauded,  or  to  delraud  jtersonti  unkjiovsii. 
^h:c  for  form  of  same,  ante,  p.  154. 


FORGERY.  1G9 

Second  count.     Passing  same. 

That,  tfec,  A.  B.,  &c.,  on,  &c.,  at,  &.C.,  feloniously  did  pass,  utter 
and  publish,  and  attempt  to  pass,  utter  and  publish  as  true,  a  certain 
false,  forged  and  counterfeit  note,  purporting  to  be  a  note  issued  by 
the  said  {setting  forth  the  bank  as  in  first  count),  for  the  sum  of 
dollars,  signed  by  president,  and  cashier,  payable 

to  or  bearer  on  demand,  and  dated  one  thousand  eight 

iiundred  and  the  said  then  and  there,  being  a  bank 

within  this  commonwealth,  incorporated  in  pursuance  of  an  act  of 
the  general  assembly  ;  which  said  false,  forged  and  counterfeit  note, 
partly  written  and  partly  printed,  is  in  the  words  and  figures  follow- 
ing, to  wit,  [setting  out  the  7iotc),  the  said  A.  B.  then  and  there  well 
knowing  the  said  note  to  be  as  aforesaid  false,  forged  and  counterfeit, 
with  intent  to  defraud  {the  party  to  lohom  the  note  was  passed), 
contrary,  &c.,  and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Forgery  of  the  note  of  a  bank  in  another  stale,  under  the   Virginia 
statute.{y) 

That  A.  B.  of  the  County  of  Cabell,  a  certain  false,  forged  and  coun- 
terfeit note,  purporting  to  be  a  note  of  the  Bank  of  Louisville,  for  live 

(y)  Com.  ».  Murray,  5  Leig'h  720.  In  this  case  the  prisoner  made  amotion  in  arrest 
of  judgment,  because  tlie  indictment  did  not  allege  that  the  bank  is  chartered,  or  that  there 
was  any  such  bank  in  existence,  according  to  the  provisions  of  the  first  section  of  the  statute; 
and,  because  the  offence  as  charged  was  not  embraced  by  the  provisions  of  the  fourth  sec- 
tion, under  which,  it  was  stated,  the  prisoner  was  indicted.  The  court  below  overruled 
tlie  motion,  and  sentenced  the  prisoner  to  imprisonment. 

May  J.,  delivered  the  opinion  of  the  court.  "The  writ  of  error  was  asked  on  the  same 
grounds  on  which  the  motion  in  arrest  of  judgment  was  founded,  and  it  is  now  further  con- 
tended that  the  indictment  cannot  be  sustained  on  the  fourth  sectionof  the  statute,  because 
it  does  not  charge  the  offence  to  have  been  committed, '  to  the  prejudice  of  another's  rights,' 
and  also  because  it  is  not  alleged  to  have  been  done  '  for  his  own  benefit  or  for  the  benefit 
of  another.'  Whether  the  bank  was  chartered,  no  vvliere  appears;  but  it  must  be  pre- 
sumed that  the  prisoner  was  not  prosecuted  under  the  first  section  of  the  statute,  because  the 
minimum  term  of  imprisonment  therein,  is  ten  years;  the  reasons  in  arrest  of  judgment 
state  that  the  prosecution  was  founded  on  the  fourth  section,  and  the  bank  is  no  where 
alleged  to  have  been  chartered.  We  regard  the  indictment,  therefore,  as  one  on  the  fourth 
section,  which  prohibits  the  counterfeiting  of  various  public  certificates,  warrants  and 
other  writings,  particularly  enumerated  therein ;  and  the  uttering  or  publishing  of  such 
counterfeits  as  true.  Among  them  we  find  any  deed,  bond,  writing  or  note,  any  letter  of 
credit,  or  other  writing  to  the  prejudice  of  another's  right. 

"In  the  latter  part  of  the  same  section,  it  is  provided,  that  if  any  person  shall,  with  the 
like  intent,  {to  defraud,  S^c),  utter  or  publish  as  true,  or  attempt,  in  any  manner;- to  use  or 
employ  as  true,  for  his  own  benefit  or  for  the  benefit  of  another,  any  false,  forged,  counter- 
feit, altered  or  erased  paper  or  writing,  as  is  aforesaid,  knowing  the  same  to  be  false,  &c., 
he  shall  be  guilty  of  felony,  and  there  is  an  exception  of 'the  bank  notes,  bills,  post  notes 
and  checks,'  mentioned  in  the  three  preceding  sections.  If  the  note  in  question  was  the 
note  of  an  unchartered  bank,  it  is  not  embraced  by  either  of  those  three  first  sections.  And 
it  has  been  said,  that  the  legislature  did  not  intend  to  prohibit  the  counterfeiting  of  the 
notes  of  such  banks.  At  the  revisal  of  1819,  the  notes  of  every  bank  chartered  by  the 
United  Stales,  or  either  of  the  states,  were,  for  the  first  time,  placed  on  the  same  footing, 
as  to  this  class  of  offences,  with  the  notes  of  the  banks  of  this  state.  Previously  there  was 
no  express  provision  for  the  offence  of  counterfeiting  t!ie  notes  of  any  bank  of  another  state, 
whether  chartered  or  not,  but  there  was  one  in  relation  to  notes  generally,  similar  to  tliat 
in  the  fourth  section  of  the  present  statute.  And  this  court  decided  in  Ilensley's  case,  2 
Va.  Cases  149,  that  the  passing  of  a  counterfeit  note,  purporting  to  be  of  a  bank  in  another 
state  (without  inquiring  whether  it  was  chartered  or  not),  was  felony,  because  the  words 
of  the  statute  then  in  force  comprehended  all  notes,  and  we  are  all  of  o[)inion,  that  the 
words  any  notes,  in  the  present  statute,  in  like  manner,  embrace  the  notes  of  unchartered 

15 


170  OFFEIVCES    AGAINST    PROPERTY. 

dollars,  feloniously  did  pass  as  a  true  bank  note  for  five  dollars  to  one 
C,  of  the  following  tenor,  {setting  fori h  note),  witli  intent  to  defraud 
the  said  C,  and  with  intent  also  to  defraud  the  corporation  of  the 
President,  Directors  and  Company  of  the  Bank  of  Louisville,  he  the 
said  A.  B.,  at  the  time  of  passing  the  said  false,  forged  and  counterfeit 
bank  note,  well  knowing  the  same  to  be  false,  forged  and  counterfeit- 
ed, contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

{Second  count  in  like  form,  only  charging  the  passing  of  a  different 
counterfeit  note  of  the  same  bank  to  C,  with  intent  to  defraud  C). 

For  mahing,  forging  and  counterfeiting,  ^c,  American  coin,  under  act 
of  congress.{ijy) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  feloniously  did  falsely  make, 
forge  and  counterfeit  pieces  of  coin,  of  and  other  mixed 

metals,  {or  otherwise),  in  the  resemblance  and  similitude  of  coin, 

called  a  which  said  coin,  called  a  had  before  the 

said,  &c.,  of,  &c.,  been  coined  at  the  mint  of  the  United  States,  with 
intent  to  defraud  some  person  or  persons  to  the  jurors  aforesaid 
unknown,  against,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Second  count.     Same,  averring  time  of  coining. 

That  the  said  A.  B.  on,  &c.,  at,  &c.,  feloniously  did  falsely 
make,  forge  and  counterfeit  pieces  of  and  other  mixed 

metals,  in  the  resemblance  and  similitude  of  coin,   called 

which  said  coin,  called  after,  &c., 

and  before,  &c.,  had  been  coined  at  the  mint  of  the  United  States 
of  America,  with  intent  to  defraud  some  person  or  persons  to  the 
jurors  aforesaid  unknown,  against,  &c.,  and  against,  &c.  {Conclude 
as  in  book  \,  chap.  3). 

banks.  Althougli  the  legislature  designed  by  another  statute  to  suppress  such  banks  in 
this  state,  wc  have  no  reason  to  believe  that  it  intended  to  interfere  will)  the  policy  of  other 
states,  which  may  permit  them.  And  certainlyj  there  is  nothing  in  either  statute  from 
which  wc  can  infer  that  the  legislature  would  tolerate  the  offence  of  forgery  for  the  mere 
])urpose  of  endeavouring  to  suppress  unchartered  banks.  As  to  the  objection,  that  the  in- 
dictment does  not  charge  the  act  to  have  been  committed  'to  the  prejudice  of  another's 
fight,'  we  are  of  opinion,  that  these  words  relate  not  to  the  ditlercnt  writings  particularly 
mentioned  in  the  previous  part  of  the  section,  the  counlerfeiting  of  most  of  which  had,  long 
before,  been  made  felony,  but  only  to  the  words  innriediately  connected  with  them,  '  any 
other  writing  to  the  prejudice  of  another's  right.'  So  too,  in  the  last  part  of  the  section, 
tlie  words,  for  liis  own  benefit,  or  for  the  benefit  of  another,  are  not  propcily  connected  with 
the  offence  of  utlcriiig  and  publishing  as  true,  any  of  the  forged  writing  and  papers  there- 
in stated,  but  only  with  tiiat  n?  ultempling  to  use  or  employ  them  for  his  own  benefit,  or 
for  the  benefit  of  another.  These  terms  were  probably  intended  to  apply  to  the  various 
warrants,  certificates  uiid  writings  of  public  officers,  which  a  person  might  attempt  so  to 
use  or  employ. 

"On  the  whole,  then,  we  are  of  opinion  that  the  note  of  an  unchartered  bank,  is  not  cm- 
bracod  by  the  first  section  of  the  statute^  but  is  eleiirly  embraced  by  the  words  any  note  in 
the  fourth  section,  that  the  words  '  to  tlje  prejudice  of  another's  right,'  relate  only  to  the 
forging  ol' oUirr  iDnliniTS,  not  particularly  named;  and  tiiat  the  words  'for  his  own  bene- 
fit, or  tor  the  Ijenefit  of  another,'  refer,  not  to  the  actual  uttering  and  i)ublishing  as  true,  of 
counterfeit  notes,  &,c.,  but  to  the  mere  attempt  to  use  or  employ  them  and  the  other  writ- 
ingH  mentioned." 

(yy;  '/"his  ihflictmcnt,  which  is  extremely  special,  is  of  the  character  in  use  in  New 
York,  in  the  United  States  court.  The  next  two  forms,  wliich  have  been  sustained  by  the 
Circuit  Court  in  Philadelphia,  are  much  more  concise,  and  etiually  accurate. 


FORGERY.  171 

Tliird  count.     Passing,  SfC. 

That  the.  said  A.  B.  on,  &c.,  at,  &c.,  feloniously  did  pass,  utter 
and  publish  as   true,  pieces   of  false,   forged  and   counter- 

feited coin,   of  metal  in  the  resemblance  and  similitude   of 
coin,   called   a  which  after,   &c.,   and  before,   &c.,   had 

been  coined  at  the  mint  of  the  United  States  of  America,  with  intent 
to  defraud  some  person  or  persons  to  the  jurors  aforesaid  unknown, 
he  the  said  ,  at  the  time  he  so  passed,  uttered  and  published  as 

true,  the  said  last  mentioned  false,  forged  and  counterfeited 
well  knowing  the  same  to  be  false,  forged  and  counterfeited,  against, 
&.C.,  and  against,  &c.     {Conclude  as  in  book  \,  chap.  3). 

Fourth,  count.     Same  hi  another  shape. 

That   the   said   A.   B.   on,    &c.,   at,   &c.,    feloniously   did    pass, 
utter,  publish   and  sell  as  true,  pieces  of  false,   forged  and 

counterfeited  coin,  in  the  resemblance  and  similitude  of  coin, 
called  a  ,  which  said  coin,  called  had  be- 

fore, &c.,  been  coined  at  the  mint  of  the  United  States  of  America, 
intending  by  such  passing,  uttering,  publishing  and  selling  as  true,  the 
said  pieces  of  false, forged  andcoanterfeited  coin, todefraud  some 

person  or  persons  to  the  jurors  aforesaid  unknown,  he  the  said 
at  the  time  he  so  passed,  uttered,  published  and  sold  as  true,  the  said 
last  mentioned  false,  forged  and  counterfeited  pieces  of  coin, 

then  and  there  well  knowing  the  same  to  be  false,  forged  and  coun- 
terfeited, against,  &c.,  and  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 

Fifth  count.     Same,  specifying  party  to  be  defrauded. 

That    the   said    A.   B.   on,   &c„   at,   &c.,    feloniously   did    pass, 
utter  and  publish  as  true,  pieces  of  false,  forged  and  coun- 

terfeited  coin,   of    metal    in    the    resemblance    and    similitude    of 
cohi,  called  a  which  after,  &c.,  and  before,  &c., 

had  been  coined  at  the  mint  of  the  United  States  of  America,  with 
intent  to  defraud  one  he  the  said  at  the  time  he  so  passed, 

uttered  and  published  as  true,  the'said  last  mentioned  fa4se,  forged 
and  counterfeited  well  knowing  the  same  to  be  false,  forged 

and  counterfeited,  against,  &c.,  and  against,  &:c.  [Conclude  as  in 
book  1,  chap.  3). 

Sixth  count. 

That  the  said  A.  B.  on,  &.c.,  at,  &c.,  feloniously  did  pass,  utter, 
publish  and  sell  as  true,  pieces  of  false,  forged  and  coun- 

terfeited coin,   in  the   resemblance   and  similitude  of  the 
coin  of  the   United   States  of  America,   called  which   said 

coin,  called  had  before,  &c.,  been  coined  at  tlie  mint  of 

the  United  States,  with  intent  to  defraud  one  he  the  said 

at  the  time  he  so  passed,  uttered,  published  and  sold  as  true,  the  said 
last  mentioned  false,  forged  and  counterfeited  pieces  of  coin, 

then  and  there  well  knowing  the  same  to  be  false,  forged  and  coun- 
terfeited, against,  &c.,  and  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 

Seventh  count. 

[Same  as  sixth  count,  except  instead  of) :  "did  pass,  utter,  pub- 
lish and  sell  as  true,"  insert  ''did  atteujpt  to  pass,  utter,  publisli  and 


172     '  OFFENCES  AGAINST  PROPERTY. 

sell  as  true,"  and  for  "with  intent  to  defraud  one  ,^^  insert 

"  with  intent  to  defraud  some  person  or  persons  to  the  jurors  afore- 
said unknown." 

Eighth  count. 

{Same  as  seventh  count,  except  instead  of) :  "had  before,  &,c., 
been  coined,  &,c.,"  insert  "had  after,  &c.,  and  before,  &c.,  been 
coined,"  &c. 

Ninth  count. 

That  the  said  A.  B.  on,  &c.,  at,  &c.,  other  pieces  of  coin, 

resembling  and  intended  to  resemble,  and  pass  for  the  coin 

of  llie  United  States  of  America,  commonly  known  by  the  name 
of,  and  called  of  the  value    of  feloniously   did 

attempt  to   pass,   utter  and   publish,  which  said  coin,  called 

after,  &c.,  and  before,  &c.,  had  been  coined  at  the  mint  of  the 
United  States  of  America,  with  the  intent  to  defraud  one  he 

the  said  at  the  time  he  so  attempted  to  pass,  utter  and  publish 

the  said  last  mentioned  false,  forged  and  counterfeited  pieces  of 

coin,  then  and  there  well  knowing  the  same  to  be  false,  forged  and 
counterfeited,  against,  dsc,  and  against,  &c.  {Conclude  as  in  book 
1,  chap.  3). 

Last  count. 

{Same  as  ninth  count,  except  that  instead  of) :  "  after,  &c.,  and 
before,  6lc.,'' insert  "  before,  &:c." 

{For  final  count,  see  ante,  p.  17,  97  n,  123  n). 

Counterfeiting  half  dollars  under  act  of  congress.{z) 

That  A.  B.,  &c.,  late,"  &c'.,  on,  &c.,  with  force  and  arms  un- 
lawfully and  feloniously  did  falsely  make  and  counterfeit  and 
cause  and  procure  to  be  falsely  made,  forg-ed  and  counterfeited, 
and  willingly  aid  and  assist  in  falsely  making,  forging  and  coun- 
terfeiting, one  coin  in  the  resemblance  and  similitude  of  the  silver 
coin  which  has  been  coined  at  the  mint  of  the  United  States,  called  a 
half  dollar,  contrary,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

{For  final  count,  see  p.  17,  97  n,  123  n). 

Passing  counterfeit  half  dollars,  loith  intent  to  defraud  an  unknown  per- 
son, under  act  of  congress.{a) 

That  A.  B.,  &c.,  late,  &c.,  on,  &c.,  with  force  and  arms  un- 
lawfully and  feloniously  did  pass,  utter  and  publish,  and  attempt 
to  pass,  utter  and  publish  as  true,  a  certain  false,  forged  and  coun- 
teri'eiied  coin  in  the  resemblance  and  similitude  of  the  silver  coin 
which  has  been  coined  at  the  mint  of  the  United  States,  called  a  half 
dollar,  he  the  said  then  and  there  knowing  the  same  to  be  false, 

forged  and  counterfeited,  with  intent  to  defraud  a  certain  person  to 

(z)  See  act  of  Conjr.  April  21,  1806;  2  St.  L.  404.  Act  of  Cong.  March  3,  1825  ;  4  St, 
L.  121,Hccl.  20,  &,c. 

11)  Act  ofCoLg.  April  21,  1806;  2  St.  L.  414.  Act  of  Cong.  March  3,  1825;  20th 
sect.  St.  L.  121. 


FORGERY.  173 

the  grand  inquest  aforesaid  unknown,  contrary,  &c.,  and  against,  Sec. 
{Conclude  as  in  book  1,  chap.  3). 

Second  count.     Same,  willi  intent  to  defraud  R.  K. 

That  the  said  A.  B.  on,  &c.,  at,  &c.,  with  force  and  arms  unlawfully 
and  feloniously  did  pass,  utter  and  publsh,  and  attempt  to  pass,  utter 
and  publish  as  true,  a  certain  other  false,  forged  and  counterfeited 
coin,  in  the  resemblance  and  similitude  of  the  silver  coin  which  has 
been  coined  at  the  mint  of  the  United  States,  called  a  half  dollar,  he 
the  said  then  and  there  knowing  the  same  to  be  false,  forged 

and  counterfeited,  with  intent  to  defraud  one  R.  K.,  contrary,  &c.,  and 
against,  &c.  {Conclude  as  in  book  1,  chap.  3). 

{For  final  count,  see  ante,  p.  17,  97  n,  123  n). 

Having  coining  tools  in  possession,  at  common  law.(b) 

That  A.  B.,  late  of  the  county  aforesaid,  yeoman,  being  a  person 
of  ill  name  and  fame,  and  of  dishonest  life  and  conversation,  and  in- 
tending the  faithful  citizens  of  this  commonwealth  to  cheat,  deceive 
and  defraud,  the  day,  &c.,  at  stamps,  {made  of  wood, 

i?'on,  or  whatever  it  be),  upon  which  was  then  and  there  made  and 
impressed  the  figure,  resemblance  and  similitude  of  a  good  and  gen- 
uine bill  of  credit,  emitted  and  made  current  by  the  resolves  of  the 
honourable  continental  congress,  and  which  same  stamp  would  then 
make  and  impress  the  figure,  resemblance  and  similitude  of  a  good 
and  genuine  bill  of  credit,  aforesaid,  without  any  lawful  authority  or 
excuse  for  that  purpose,  linowingly  and  unlawfully  had  in  his  custody 
and  possession  with  an  intent  to  impress,  forge  and  counterfeit  the  bills  of 
credit  aforesaid,  and  to  pass,  utter  and  pay  such  forged  and  counter- 
feit bills  of  credit  to  the  faithful  subjects  of  this  commonwealth  and 
the  United  States  of  America,  to  the  evil  example  of  all  others  in 
like  case  offending,  and  against,  &c.  {Conclude  as  in  book  I,  chap.  3), 

Making,  forging  and  counterfeiting,  <^'C.,  foreign  coin,  quarter  dollar, 
under  act  of  congress. {c) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  pieces  of  false,  forged  and  coun- 
terfeited coin,  each  piece  thereof  resembling  and  intended  to  resemble 
and  pass,  for  a  quarter  of  a  Spanish  milled  dollar  {or  otherwise),  (the 
quarter  of  a  Spanish  milled  dollar  then  and  there  being  a  foreign 
silver  coin,  in  actual  use  and  circulation  as  money  within  the  said 
United  States),  feloniously  did  falsely  make,  forge  and  counterfeit, 
against,  &c.,  and  against,  &c.    {Conclude  as  in  book  1,  chap.  3). 

Seco7ul  count.     Procuring  forgery. 

That  the  said  A.  B.,  heretofore,  on,  &c.,  at,  &c.,  pieces  of  false, 
forged  and  counterfeited  coin,  each  piece  thereof  resembling  and  in- 
tended to  resemble  and  pass  for  a  quarter  of  a  Spanish  milled  dollar, 
(the  quarter  of  a  Spanish  milled  dollar  then  and  there  being  a  foreign 
silver  coin,  in  actual  use  and  circulation  as  money  within  the  said 
United  States),  feloniously  did  cause  and  procure  to  be  falsely  made, 

(ft)   Drawn  by  Mr.  Brad  ford, 
(c)  The  defendant  in  this  case  pleaded  guilty. 
15* 


174  OFFKNCES  AGAINST   PROPERTY. 

forged  and  counterfeited,  against,  &c.,  and  against,  &c.  [Conclude  as 
in  book  1,  chap.  3). 

Tliird  count. 

{Same  as  second  count,  except  instead  of):  "  feloniously  did  cause 
and  procure  to  be  falsely  made,  forged  and  counterfeited,"  insert 
"  feloniously  did  willingly  aid  and  assist  in  falsely  making,  forging 
and  counterfeiting." 

Fourth  count. 

{Same  as  third  count,  except  instead  of):  "feloniously  did  will- 
ingly aid  and  assist  in  falsely  making,  forging  and  counterfeiting," 
insert  "feloniously  did  utter  as  true,  for  the  payment  of  money,  with 
intent  to  defraud  some  person  or  persons  to  the  jurors  aforesaid  as  yet 
unknown,  he  the  said  then  and  there  knowing  the  said  last 

mentioned  pieces  of  coin  to  be  false,  forged  and  counterfeited." 

Fifth  count. 

{Same  as  fourth  count,  substituting)  :  "with  intent  to  defraud  one 
,^^  for  "  with  intent  to  defraud  some  person  or  persons  to  the 
jurors  aforesaid  as  yet  unknown." 

{For  final  count,  see  p.  17,  97  n,  123  n). 

Passing,  uttering  and  publishing  counterfeit  coin  of  a  foreign  country, 
under  act  of  congress,  specifying  party  to  be  defrauded. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  did  feloniously  pass,  utter 
and  publish  as  true,  pieces  of  false,  forged  and  counterfeited 

coin,  in  the  resemblance  and  similitude  of  the  coin  called 

the  dollar  of  Mexico  {or  otherwise),  which,  before  the  said 
on,  &c.,  had  been  by  law  made  current  in  the  said  United  States, 
he  the  said  knowing  at  the  time  he  so  passed,  uttered  and 

published  the  said  pieces  of  false,  forged  and  counterfeited 

coin,  that  the  same  were  false,  forged  and  counterfeited,  and  intend- 
ing by  such  passing,  uttering  and  publishing,  to  defraud  one  of 
the  said  City  of  New  York,  in  the  circuit  and  district  aforesaid, 
against,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count. 

That  the  said  A.  B.,  &c.,  on,  &c.,  at,  &c.,  other  pieces  of 

false,  forged  and  counterfeited  coin,  in  the  resemblance  and  simili- 
tude of  the  foreign  coin  {if  such  is  the  case),  called  the 
of  which,  before  the  said  on,  &c.,  had  been  by  law 
made  current  in  the  said  United  States,  feloniously  did  pass,  utter 
and  publish  as  true,  he  the  said  knowing  at  the  time  he  so 
passed,  uttered  and  published  as  true,  the  said  pieces  of  false, 
i'orged  and  counterfeited  coin  last  aforesaid,  that  the  same  were  false, 
forged  and  counterCeited,  and  intending  by  such  passing,  uttering 
and  publishing,  to  defraud  some  person  or  persons  to  the  said  jurors 
unknown,  against,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

"J  bird  count. 

(Same  as  second  count,  substituting):  "and  intending  by  such 
passing,  uttering  and  jjublishing,  to  defraud  one  of  the  City  of 

Nuw  Y(>rk,  in  the  circuit  and  district  aforesaid"  {or  otherwise),  for 


FORGERY.  175 

"  and  intending  by  such  passing,  uttering  and  publishing,  to  defraud 
some  person  or  persons  to  the  said  jurors  unknown." 

Fourth  count. 

That  the  said  A.  B.,  on,  6z;c.,  at,  &c.,         other  pieces  of  false,  forged 
and  counterfeited  coin  in  the  resemblance  and  similitude  of  the 
coin  called  the  of         a  foreign  coin  which,  before  the  said 

on,  &c.,  by  an  act  of  the  congress  of  the  United  States  of  America, 
entitled,  "  An  Act  regulating  the  currency  of  foreign  gold  and  silver 
coin  in  the  United  States,"  approved  on  the  third  day  of  March  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  forty-three,  had 
been  made  current  in  the  said  United  States,  feloniously  did  pass, 
utter  and  publish  as  true,  he  the  said  knowing  at  the  time  he 

so  passed,  uttered  and  published  as  true-the  said  pieces  of  false, 

forged  and  counterfeited  coin,  that  the  same  were  false,  forged  and 
counterfeited,  and  intending  by  such  passing,  uttering  and  publishing, 
to  defraud  one  of  the  City  and  County  of  New  York,  in  the 

circuit  and  district  aforesaid,  against,  &c.,  and  against,  &c.  (Con- 
clude  as  in  book  1,  chap.  3). 

Last  count. 

{For  final  count,  see  p.  17,  97  n,  123  n). 

Debasing  the  coin  of  the  United  States,  by  an  officer  employed  at  the 
mint,  under  act  of  congress.{d) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  being  then  and  there  a  person 
and  officer  employed  at  the  mint  of  the  United  States,  at  aforesaid, 
did  debase  and  make  worse  certain  pieces,  to  wit,  ten  pieces  of  gold 
coin  called  eagles,  (which  had  been  struck  and  coined  at  the  said 
mint  of  the  United  States),  as  to  the  proportion  of  fine  gold  therein 
contained,  and  which  were  then  and  there  by  the  said  A.  B.,  he  being 
such  person  and  officer  employed  in  the  said  mint  of  the  said  United 
States  as  aforesaid,  made  of  less  weight  and  value  than  the  same 
ought  to  be  by  the  provisions  of  the  several  acts  and  laws  of  the  said 
United  States  relative  thereto,  through  the  default  and  connivance  of 
the  said  A.  B.,  he  being  then  and  there  such  person  and  officer  em- 
ployed as  aforesaid  in  the  said  mint,  for  the  purpose  of  unlawful 
profit  and  gain,  and  with  an  unlawful  and  fraudulent  intent  to  de- 
base, make  worse  and  render  of  no  value  the  aforesaid  ten  pieces  of 
gold  coin,  against,  &c.,  and  contrary,  &c.  [Conclude  as  in  book  I, 
chap.  3). 

{For  final  count,  see  p.  17,  97  n,  123  n). 

Fraudulently  diminishing  the  coin  of  the  United  States,  under  act  of 
congress,  (e) 

That  A.  B.,  &c.,  on,  &lc.,  at,  &c.,  did  unlawfully,  fraudulently  and 
for  gain's  sake,  impair,  diminish,  falsify,  scale  and  lighten  certain 
pieces,  to  wit,  ten  pieces  of  gold  coin  called  eagles,  which  had  been 
coined  at  the  mint  of  the  United  States,  with  intent  to  defraud  some 

(.7)  Davis'  Free.  138, 

(e)  Davis'  Free.  135'.     Act  of  2ist  April,  1806,  s.  3;  Gordoa's  Dig.  art.  3G31,  p.  711. 


176  OFFEKCES  AGAIiVST   PROPERTY. 

person    to   the    said  jurors  unknown,   against,   &c.,   and   contrary, 
&c.(y)     {Conclude  us  in  book  1,  chap.  3). 
{For  fuial  coutit,  see  i^.  17,  97,  123). 

Uttering  a  counterfeit  half-guinea,  at  common  Iaw.{g) 

That  defendant,  on,  &c.,  at,  &c.,  one  piece  of  false  money  made  of 
base  metals,  and  coloured  with  a  certain  wash  producing  the  colour 
of  gold,  to  the  likeness  and  similitude  of  a  piece  of  good,  lawful  and 
current  gold  money  and  coin  of  this  realm,  called  a  half-guinea,  un- 
lawfully, unjustly  and  deceitfully  did  utter  and  pay  to  one  C.  D.,  for 
and  as  a  piece  of  good  and  lawful  gold  money  and  coin  of  this  realm 
called  half  a  guinea,  he  the  said  A.  B.  then  and  there  well  knowing 
the  said  piece  to  be  false  and  counterfeit  as  aforesaid,  to  the  great 
damage  of  the  said  C.  D.,  and  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 

Passing  counterfeit  coin  similar  to  a  French  coin,  at  common  law. 

That  M.  B.,  late  of,  &c.,  on,  &.C.,  at,  &c.,  one  false,  forged  and 
counterfeited  piece  of  pewter,  lead  and  other  base  and  mixed  metals 
composed  in  form,  similitude  and  likeness  of  a  silver  French  crown, 
made  (the  same  silver  French  crown  then,  and  still  being,  a  silver 
French  coin  current  and  passing  in  circulation  in  this  state),  for  and 
as  a  good,  true  and  genuine  French  silver  crown,  to  a  certain  J.  J,, 
then  and  there  did  pass,  pay  away,  utter  and  tender  in  payment,  he 
the  said  M.,  then  and  there  well  knowing  the  same  piece  to  be  so  as 
aforesaid  false,  forged  and  counterfeited,  contrary,  &,c.,  and  against, 
&c.      {Conclude  as  in  book  1,  chap.  3). 

Counterfeiting  United  Slates  coin,  under  tlte  Vermont  statute. {h) 

That  the  respondent,  at  Weybridge,  "  with  intent  the  good  people 
of  this  state  and  of  the  United  States  to  deceive  and  defraud,  with 
force  and  arms,  on  the  tenth  day  of  April,  A.  D.  1845,  ten  pieces  of 

(/)  If  the  coin  debased  was  foreign  gold  or  silver,  then  say  "which  said  gold  coin  were 
ten  pieces  of  foreign  gold  coin,  which  were  by  tiie  laws  of  the  United  States  made  current, 
and  were  in  actual  use  and  circulation  as  money,  within  the  said  United  States." 

ig)  Stark.  C;.  P.  447. 

(h)  Slate  ».,Griflin,  18  Verm.  198.  "  Tlie  statute,"  it  was  said,  "  on  which  the  third  count 
rested,  is  intended  to  reach  every  part  of  the  a|>paratns  of  coining,  however  much  more 
might  bo  necessary  to  make  that  efl'cctivc,  and  that,  therefore,  if  it  be  shown  that  the  res- 
pondent had  in  his  possession  one  half  of  a  mould,  it  is  sufficient,  without  proof  that  he 
also  had  the  oilier  half. 

"Tiie  allegation,  in  the  indictment,  that  the  respondent,  'ten  pieces  of  false,  forged  and 
counterltit  coin  and  money,'  &c.,  'unlawfully  and  feloniously  did  forge,  make  and  coun- 
terfeit,' &-C.,  was  held  suflicient.  The  ambiguity,  it  was  said,  arises  only  fiom  the  difTereiit 
sense  in  which  the  word  '  counterfeit'  is  used." 

An  indictment  for  having  in  possession  counterfeit  coin,  it  was  ruled,  need  not  aver  that 
the  df'noinination  of  coin  which  was  counterfeited,  was  "current  by  law,  or  usage,  in  this 
state,"  it  being  averred,  that  ttie  coin  was  one  of  ihe  current  silver  coins  of  tlic  United 
States.  The  court  will  take  judicial  notice,  that  the  current  coins  of  the  United  States  are 
current  also  in  lliis  stale. 

In  sueli  iriiiictuK  til  it  is  not  necessary  to  aver  of  what  materials  the  counteilllt  coin  was 
made;  and  if  averred,  it  ncfd  not  be  proved. 


FORGERY.  177 

false,  forged  and  counterfeit  coin  and  money,  of  pewter,  lead,  tin  and 
zinc,  and  other  mixed  metals,  in  the  similitude  of  the  good,  legal  and 
current  money  and  silver  coins  of  the  United  States,  which  are  current 
by  law  and  usage  in  this  state,  called  '  half  dollars,'  then  and  there 
unlawfully  and  feloniously  did  forge,  make  and  counterfeit,  contrary," 
&:c.  {Conclude  as  in  book  1,  chap.  3),  {The  second  count  was  for 
having  in  possession  counterfeit  coin,  with  intejit  to  pass  the  same.  The 
third  count  ivas  for  having  in  possession  divers  moulds  and  patterns, 
adapted  and  designed  for  making  counterfeit  coin,  loilk  intent  to  use  the 
same  in  coining  counterfeit  half  dollars). 

Having  in  possession  coining  instruments,  under  the  Rev.  Stat,  of  Mas- 
sachusetts, c.  127,  s.  18.(/) 

That  A.  B.,  at,  &c.,  on,  &c.,  did  knowingly  have  in  his  possession 
a  certain  mould,  pattern,  die,  puncheon,  tool  and  instrument  adapted 
and  designed  for  coining  and  making  one  side  of  a  counterfeit  coin, 
in  the  similitude  of  one  side  or  half  part  of  a  certain  silver  coin,  called 
a  half  dollar,  to  wit,  that  side  or  half  part  thereof,  which  represents  a 
spread-eagle,  and  has  the  words,  "  United  States  of  America — Half 
Dollar ;"  said  coin,  called  a  half  dollar,  being  current  by  law  and 
usage  in  this  state  and  commonwealth  aforesaid,  with  intent  to  use 
and  employ  the  said  mould,  pattern,  die,  puncheon,  tool  and  instru- 
ment, and  cause  and  permit  the  same  to  be  used  and  employed,  in 
coining  and  making  such  false  and  counterfeit  coin  as  aforesaid,  &c. 

Counterfeiting  coin  under  Rev.  Stat,  of  Massachusetts,  c.  127,  s.  15.(J) 

That,  &c.,  at,  &c.,  on,  &c.,  had  in  his  custody  and  possession,  at  the 
same  time,  ten  similar  pieces  of  false  and  counterfeit  coin,  of  the  like- 
ness and  similitude  of  the  silver  coin  current  within  this  common- 
wealth, by  the  laws  and  usages  thereof,  called  Mexican  dollars,  with 
intent  then  and  there  the  said  pieces  of  false  and  counterfeit  coin  to 
utter  and  pass  as  true,  he  the  said  D.  R.  F.  then  and  there  well  know- 
ing the  same  to  be  false  and  counterfeited,  against,  &c.  {Conclude 
as  in  book  1,  chap.  3). 

Having  in  custody  counterfeit  coin,  under  the  Rev.  Stat,  of  Massachu- 
setts.{k) 

That  A.  B.,  on,  &c.,  at,  &c.,  "had  in  his  custody  and  possession,  a 

(t)  Com.  V.  Kent,  6  Met.  221.  In  this  case  it  was  held  that  under  the  Rev.  Stat.  c.  127, 
s.  18,  providing  for  the  punishment  of  a  person  who  shall  knowingly  have  in  his  possession 
any  instrument  adapted  and  designed  for  coining  or  making  counterfeit  coin,  with  intent 
to  use  the  same,  or  cause  or  permit  the  same  to  be  used,  in  coining  or  making  such  coin, 
a  person  is  punishable  for  so  having  in  his  possession,  with  such  intent,  an  instrument 
adapted  and  designed  to  make  one  side  only  of  a  counterfeit  coin. 

On  the  trial  of  a  party  who  is  indicted  (or  knowingly  having  in  his  possession  an  in- 
strument adapted  and  designed  for  coining  or  making  counterfeit  coin,  with  intent  to  use 
it,  or  cause  or  permit  it  to  be  used  in  coining  or  making  such  coin,  he  cannot  give  in  evi- 
dence his  declarations  to  an  artificer,  at  the  time  he  employed  him  to  make  such  instru- 
ment, as  to  the  purposes  for  whicli  he  wished  it  to  be  made. 

( /■)  Com.  15.  Fuller,  8  Met.  .31.3,  where  the  exceptions  to  this  form  were  overruled. 

(k)  Com.  c.  tjtcarns,  10  Mel.  25U.     Dewey  J.:  "The  objeclioa   of  variance  between 


178  OFFENCES  AGAINST  PROPERTY. 

certain  piece  of  false  and  counterfeit  coin,  counterfeited  in  the  likeness 
and  similitude  of  tiie  good  and  legal  silver  coin  current  within  said 
commonwealth,  by  the  laws  and  usages  thereof  called  a  dollar,  with 
intent  then  and  there  to  pass  the  same  as  true  ;  he  the  said  A.  B.  then 
and  there  well  knowing  the  same  to  be  ialse  and  counterfeit,"  &c. 

For  uttering  and  passing  counterfeit  coin,  under  the  Massachusetts  sta- 
tute, iyc.{/) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  had  in  his  custody  and  possession 
a  certain  piece  of  false  money  and  coin,  forged  and  counterfeited  to 
the  likeness  and  similitude  of  the  good  and  legal  silver  coin,  current 
within  this  commonwealth  by  the  laws  and  usages  thereof,  called 
a  dollar;  and  that  he  the  said  A.  B.,  the  aforesaid  piece  of  forged  and 
counterfeit  coin  did  then  and  there  utter,  pass  and  tender  in  payment 
as  true,  with  intent  one  C.  D.  then  and  there  to  injure  and  defraud  ; 
he  the  said  A.  B.  then  and  there  well  knowing  the  aforesaid  piece 
of  coin  to  be  false,  forged  and  counterfeit,  against,  &c.,  and  contrary, 
&c.     (^Conclude  as  in  book  1,  chap.  3). 


the  proof  offered  and  tlie  offence  chargfcd,  is  not  sustained.  Tlic  crime  charged  in  the  in- 
dictment is  the  having-  in  possession,  &c.,  a  certain  counterfeit  coin,  in  the  likeness  of  a 
silver  coin  called  a  dollar.  The  evidence  siiows  this  coin  to  have  been  in  the  likeness  and 
similitude  of  a  Mexican  dollar.  But  a  iVlexican  dollar  is  not  tiie  less  a  dollar,  nor  is  it  in- 
appropriately described  as  a  dollar.  The  term  'dollar'  does  not  import  a  coin  coined  at 
the  mint  of  tlie  United  States.  The  United  States  statute  of  17!)2,  c.  IG,  legalized  the  dol- 
lar of  the  United  States  coinage,  and  the  statute  of  1834,  c.  71,  legalized  the  dollar  of 
Mexico.  Botii  are  adopted  by  us,  and  both  are  coins  current,  by  law  and  usage,  in  this 
commonvvealth ;  and  the  havin'g  in  possession  of  counterfeits  of  either,  with  the  criminal 
intent  described  in  the  Rev.  Stat.  c.  1^7,  ss.  15,  16,  constitutes  the  statutory  offence. 

"  The  only  question,  in  the  present  case,  tiiat  can  require  much  consideration,  is  that 
which  arises  upon  the  motion  in  arrest  of  judgment  for  supposed  deficiency  in  the  allega- 
tions in  the  indictment.  As  to  the  first  of  these  reasons,  viz.  that  the  indictment  is  insuffi- 
cient, inasmuch  as  the  term  'dollar,'  therein  used,  may  denote  a  coin,  the  counterfeiting 
whereof  is  not  criminal  by  the  laws  of  this  commonwealth,  it  seems  to  be  answered  by  the 
very  language  of  the  indictment.  The  dollar  therein  set  forth  is  alleged  to  be  '  in  the  simi- 
litude of  the  legal  silver  coin  c  ..rrent,  by  law  and  usage,  in  tiiis  commonweallli.'  And  this 
is  a  substantial  allegation,  that  must  be  proved.  Ht'nce,  no  dollar  that  is  not  of  the  simi- 
litude of  the  lcg;il  silver  coin  of  this  commonwealth,  will  correspond  with  that  set  forth  in 
the  indictment,  and  furnish  the  proof  requisite  to  a  conviction. 

"The  remaining  inquiry  is  whether  the  indictment  is  bad  for  uncertainty,  in  not  speci- 
fying, with  greater  particularity,  the  descri|)tive  character  of  the  counterfeit  dollar,  as  of 
the  coinage  of  the  Mexican  government  and  in  the  siniilitude  of  a  Mexicat\  dollar.  It  is 
true  that  the  indictment  nnist  particularly  set  forth  the  kind  of  coin  alleged  to  be  counter- 
feit, &-C.,  as  is  stated  in  2  Hale's  W  C.  187,  and  2  Chit.  C.  L.  105,  note  d.  Hut  that  rule 
does  not  affect  the  present  (pustion,  nor  [)resent  any  objection  to  this  indictment. 
The  kind  of  coin  to  be  set  forth  and  described,  is  the  denomination  or  name  of  the  coin  ; 
as  the  dollar,  th(!  half  dollar,  or  the  dinu-,  as  the  case  may  be.  And  if  this  indictment  had 
merely  described  the  alleged  countertcjit  coin  to  be  in  the  likeness  of  silver  coin  current  in 
this  commonwealth,  by  the  laws  and  usiig(;s  thereof,  it  would  have  presented  a  case  liable 
tfi  tiic  objection  of  a  want  of  |)articuliirily  of  description,  Ihit  such  is  not  the  case  here. 
'I'hc  Coin  is  described  under  its  appropriate  denomination,  and  that  is  sufficient,  without 
adding,  as  a  further  description,  the  place  of  coinage,  'l"he  ])lace  of  coinage  of  a  dollar  is 
no  rij^;cessary  part  of  llu;  (leseiiplion  which  is  re(piircd  to  be  given  of  a  coin  in  an  indiet- 
nient.  The  recital  of  the  various  inscriptions  and  devices  borne  on  if,  and  ])articnlarly  the 
date  of  its  issue,  would  seem  to  be  quite  as  material  as  the  place  of  coinage;  but  these  are 
not  required  to  be  sjiecified.  I'he  court  arc  of  opinion  that  this  objection  is  not  sustained 
cither  by  niilhority  or  sound  principle." 

(,/;  Duvis'  i'rcc.  l.'J2, 


FORGERY.  179 

For  making  or  being  fossesaed  of  any  tool,  S^-c,  to  he  used  in  counterfeit- 
ing coin,  under  the  Massachusetts  statute. (m) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  intending  the  citizens  of  this  com- 
monwealth to  injure,  deceive  and  defraud,  did  cast,  stamp,  engrave, 
form  and  make,  and  did  then  and  there  knowingly  have  and  possess 
a  certain  tool  and  instrument,  devised,  adapted  and  designed  for  the 
coining  and  making  of  false  and  counterfeit  money  and  coin,  in  the 
similitude  of  the  silver  money  and  coin  current  within  this  common- 
wealth by  the  laws  and  usages  thereof,  called  a  die;  witlrthe  intent 
to  use  and  employ  the  same,  and  to  cause  and  permit  the  same  to  be 
used  and  employed  in  coining  and  making  the  false  money  and 
coin  aforesaid;  against,  &c.,  and  contrary,  &c.  {Cojiclude  as  in 
book  1,  chap.  3). 

Having  in  possession  an  instru7nent  to  be  used  for  forgery,  S^-c.     On 
Rev.  Stat,  of  Massachusetts,  c.  127,  s.  18.(7?) 

That,  &c.,  on,  &c.,  did  knowingly  have  in  his  possession  a  certain 
mould,  pattern,  die,  puncheon,  tool  and  instrument,  adapted  and  de- 
signed for  coining  and  making  one  side  or  half  part  of  a  certain  silver 
coin,  called  a  half  dollar,  to  wit,  that  side  or  part  thereof  which  repre- 
sents a  spread-eagle,  and  has  the  words  "United  States  of  America"' — 
'•  Half  Dollar  ;"  said  coin,  called  a  half  dollar,  being  current  by  law 
and  usage  in  this  state  and  commonwealth  aforesaid,  with  intent  to 
use  and  employ  the  same  mould,  pattern,  die,  puncheon,  tool  and 
instrument,  and  cause  and  permit  the  same  to  be  used  and  employed 
in  coining  and  making  such  false  and  counterfeit  coin  as  aforesaid, 
against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Coining,  <^c.,  under  the  JVorth  Carolina  Statute.(p) 

That  the  defendant,  on,  &c.,  with  force  and  arms,  in  the  county 
aforesaid,  one  pair  of  dies,  upon  which  then  and  there  were  made 

(m)  Davis'  Prec.  133. 

(h)  In  Com.  V.  Kent,  6  Met.  221,  the  precedent  in  the  text  was  approved. 

(o)  State  V.  Haddock,  2  Hawks  462.  Taylor  C.  J.:  "  It  does  not  admit  of  any  reason- 
able doubt,  that  a  pair  of  dies  is  an  instrument  or  instruments,  within  the  4th  sect,  of  tlie 
act  of  1811,  c.  814,  upon  which  the  first  count  is  framed;  and  being  more  generally  used 
in  coinage  tJihn  any  otiicr  instrument,  is  one  upon  which  the  act  would  bo  most  likely  to 
operate  frequently.  It  may  be  said,  that  as  the  dies  are  described  as  having  impressed 
upon  them  only  the  likeness,  similitude,  figure  and  resemblance  of  the  sides  of  a  Spanish 
milled  dollar,  and  not  the  edges,  that  thoy  cannot  answer  the  purpose  described  in  tlie  act, 
of  making  a  counterfeit  similitude  or  likeness  of  a  Spanish  milled  dollar.  But  it  is  for  the 
jury  to  consider,  whether  the  dies  be  calculated  to  impress  the  counterfeit  similitude  or 
likeness  of  a  dollar;  for  these  words  in  the  act  extend  the  offence  beyond  an  exact  imita- 
tion of  the  figures  and  marks  of  the  coin.  For  if  the  instrument,  in  point  of  fact,  will  im- 
pose on  the  world,  in  general  it  is  sufficient  whether  the  imitation  be  exact  or  not.  And 
this  is  the  construction,  upon  those  highly  penal  acts,  relative  to  the  coin,  in  England. 
Thus,  having  knowingly  in  possession  a  |)uncheon  for  the  purpose  of  coining,  is  within 
the  stat.  of  8  and  [)  Wm.  III.,  though  that  alone,  without  the  counter  puncheon,  will  not 
make  the  figure;  and  though  such  puncheon  had  not  the  letters, yet  it  was  held  sufficiently 
described  in  the  indictment  as  a  puncheen,  which  would  impress  the  resemblance  of  the 
head  side  of  a  shilling;  1  East  P.  C.  171.  But  if  the  parts  of  this  indictment  which  are 
employed  in  a  description  of  the  dies  were  altogethrr  omitted,  the  charge  would  be  within 
the  act,  for  it  would  then  read,  that  the  defendants  had  in  their  possession  a  pair  of  dies, 


180  OFFENCES    AGAINST    PROPERTY. 

and  impressed  the  likeness,  similitude,  figure  and  resemblance  of  the 
sides  of  a  lawful  Spanish  milled  dollar,  without  any  lawful  authority, 
then  and  there  feloniously  had  in  possession,  (fee,  for  the  purpose  of 
then  and  there  making  and  counterfeiting  money,  in  the  likeness  and 
similitude  of  Spanish  milled  silver  dollars,  contrary,  &c.,  and  against, 
&c,  {Conclude  as  in  book  1,  chap.  3). 


CHAPTER  II. 


BURGLARr. 


General  frame  of  indictment  for  burglary  and  larceny  at  common 
law.{a) 

That  A.  B.,  late  of,  &c.,  in,  &c.,  labourer,  on,  &c,,  about  the  hoar 
of  one  of  the  night, (6)  of  the  same  day,  with  force  and  arms,  at  the 
parish(c)  aforesaid,  in  the  county  aforesaid,  the  dwelling  house(t/)  of 
one  C.  I).(c)  there  situate,  feloniously (/)  and  burglariously  did  break 


for  the  purpose  of  making  counterfeit  dollars,  which  is  the  crime  in  substance  created  by 
the  act.  As  I  do  not  perceive  any  ground  for  any  other  objection  arising  from  the  record, 
the  case  having  been  submitted  without  argument,  my  opinion  is,  that  the  reasons  in  arrest 
be  overruled."     And  in  this  opinion  the  rest  of  the  court  concurred. 

(o)  This  form  is  drawn  from  Stark.  C.  P.  435. 

{h)  It  is  necessary  to  allege  a  particular  hour;  State  v.  G.  S.,  1  Tyler  995;  and  to  state 
it  to  be  in  the  night  of  the  i)rcceding  day,  though  after  twelve  o'clock.  If  the  noclanter 
be  omitted  in  the  common  form  averring  larceny,  the  indictment  will  be  turned  into  one 
for  larceny;  Thompson  v.  Com.,  4  Leigh  652.  It  is  certainly  bad  to  aver  the  offence  to 
have  been  committed  "between  the  hours  of  twelve  at  night  and  nine  in  the  next  morn- 
ing;" State  V.  Mather,  Chip.  32 ;  though  the  day  and  hour  themselves  arc  not  material  to 
be  proved  as  laid ;  sec  ante,  p.  9. 

(c)  The  i)lace  should  be  correctly  stated. 

(</)  The  house  must  be  described  as  the  dwelling  house  of  the  real  tenant;  Stark.  C.  P. 
79  ;  and  tliis  is  the  proper  description,  though  part  only  of  the  house  be  separately  occu- 
j)ied.  The  i)articular  interest  of  the  alleged  owner  is  insutRcient.  It  is  enough  if  the 
iiouse  be  his;  People  v.  Van  Ularcnm,  2  .Johns.  105.  Burglary  may  also  be  committed  in 
a  church  or  chapel.  If  the  offence  be  committed  in  an  outhouse  within  tiie  cur- 
tilage, it  should  be  laid  to  have  been  committed  in  the  dwelling  house  or  in  a  stable, 
&c.,  being  part  of  the  dwelling  house;  Dobbs'  case,  East  P.  C.  513;  Garland's  case, 
ib.  493. 

'(■)  It  should  be  alleged  or  implied  that  some  one  resided  in  tiic  house ;  Forsyth  ».  State, 
f)  Mam.  2;i.  If  a  mere  intent  to  steal  be  alleged,  the  ownership  should  still  be  correctly 
averred  ;  Stark.  C.  P.  215.  ' 

(/)  Tlieso  words  are  essential ;  Lewis'  C.  L.  139  ;  Hale's  P.  C.  (by  Stokes  &  Ing.)  549 ; 
Wh.  C.  L.  367 ;  and  so  are  the  words  "  dwelling  house"  and  "  in  the  night."  The  means 
of  breaking  and  entering  arc  immaterial. 


BURGLARY.  181 

and  enter,(^)  with  intent(A)  the  goods  and  chattels  of  the  said  C.  D, 
in  the  said  dwelhng  house  then  and  there  being,  then  and  there 
feloniously  and  burglariously  to  steal,  take  and  carry  away;  and  one 
gold  watch  of  the  value  of  thirty  doIlars,(/)  of  tlie  goods  and  chattels 
of  the  said  C.  D.,(j)  in  the  said  dwelling  house  then  and  there  being 
found,  then  and  there  feloniously  and  burglariously  did  steal,  take 
and  carry  away,  against,  &c.     {Conclude  as  in  book  I,  chap.  3). 

Burglary  and  larceny  at  common  law.     Another  form.{k) 

That  J.  B.,  late,  &c.,  on,  &c.,  about  the  hour  of  eleven  in  the  night 
of  the  same  day,  at,  &c.,  the  dwelling  house  of  I.  H.  Jr.,  there  situate, 
feloniously  and  burglariously  did  break  and  enter,  (and  the  goods  and 
chattels,  moneys  and  property  of  the  said  I.  H.  Jr.,  in  the  said  dwell- 
ing house  then  and  there  being,  then  and  there  feloniously  and  bur- 
glariously to  steal,  take  and  carry  away),  and  then  and  there  in  the 
said  dwelling  house,  &c.,  twenty  eight  yards  of  Scotch  ingrain  carpel, 
of  dark  colours,  of  the  value  of  thirty  dollars,  &c.,  of  the  goods 

and  chattels,  moneys  and  property  of  the  said  I.  H.  Jr.,  in  the  said 
dwelling  house  then  and  there  being  found,  then  and  there  felonious- 
ly and  burglariously  did  steal,  take  and  carry  away,  contrary,  &.C., 
and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count.     Receiving  stolen  goods. 

That  the  said  J.  B.,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  the  goods 
and  chattels,  moneys  and  property  aforesaid,  by  some  ill-disposed 
])erson  to  the  jurors  aforesaid  yet  unknown,  then  lately  before  felo- 
niously and  burglariously  stolen,  taken  and  carried  away,  unlawfully, 
unjustly  and  for  the  sake  of  wicked  gain,  did  receive  and  have  (the 
said  J.  B.  then  and  there  well  knowing  the  goods  and  chattels,  moneys 
and  property  last  mentioned  to  have  been  feloniously  and  burgla- 

{g)  The  intention  is  included  in  the  words  "feloniously  and  burg-lariously,"  &.C.,  but  it 
must  be  further  shown  that  the  breaking-  and  entry  was  done  to  commit  a  felony,  which 
felony  should  be  specified.  But  an  averment  that  he  did  tlien  and  there  commit  a  specific 
felony  is  a  sufficient  averment  of  the  intention  ;  Com.  v.  Brown,  3  Rawie  207.  A  statutable 
felony  will  support  the  indictment;  1  Hawk.  c.  38,  s.  38;  R.  ».  Knight  and  Roffrey,  East  P. 
C.  510. 

yh)  Unless  the  commission  of  a  felony  be  actually  laid,  this  is  essential;  R.  v.  Lyon. 
Leach  221,  3d  ed. 

(t)  Describe  the  character  and  value  of  each  article  according  to  the  fact,  as  in  larceny; 
6ce  post,  p.  191. 

:j)  The  ownership  must  be  correctly  stated;  antf,  p.  10;  post,  p.  102;  Stark.  C.  P.  210, 215. 

{k)  Com.  V.  Brown,  3  Rawle  207.  Sentence  was  passed  on  this  indictment  in  the  Su- 
preme Court.  "The  motion  in  arrest  of  judw-ment,"  said  Gibson  C.  J.,  "  is  founded  on  the 
ab.^ence  of  a  direct  averment  that  the  breaking  and  entering  was  with  a  felonious  intent, 
nnd  although  a  larceny  is  charged  to  have  been  committed  afterwards,  it  is  argued  with 
much  theoretic  plausibility,  that  this  may  have  been  in  pursuance  of  a  design  subsequent- 
ly hatched.  It  is  certain  that  all  material  facts  must  be  [)ositively  charged  instead  of  being 
collected  by  inferences ;  but  in  this  particular  this  indictment  is  found  to  be  in  strict 
accordance  with  the  most  approved  precedents  (Cro.  Cir.  Comp.  203),  and  for  that  rea- 
toii  this  motion,  also,  must  be  overruled."  In  Cro.  C.  C.  2i)3,  the  passage  in  brackets  in 
the  text,  which  is  plainly  surplusage,  is  omitted  ;  see  also  3  Chit.  C.  L.  203.  The  disad- 
vantage of  this  form  is  that  in  case  the  stealing  is  left  unproved,  the  defendant  must  be 
acquitted  in  <oto;  1  Leach  708;  3  Chit.  C.  L.  1114.  On  this  account  Ld.  Hale  rccom- 
mends  the  form  first  given,  p.  180,  on  which  the  defendant  m  ly  be  convicted  of  either 
burglary  or  larceny,  or  both;  1  Hale  P.  C.  (.ed.  Stokes  tSt  Ing.)  559. 
16 


182  OFFENCES  AGAINST  PROPERTY. 

riously  stolen,  taken  and  carried  away),  contrary,  &.c.,  and  against. 
&c.     [Conclude  as  in  book  1,  chaj).  3).{kk) 

Burglary  at  common  law  with  no  larceny. 

That  A.  B.,  late,  &c.,  on,  &c,,  about  the  hour  of  eleven  in  the  night 
of  the  same  day,  at,  &c.,  the  dvvelhng  house  of  one  C.  D.,  there  situate, 
feloniously  and  burglariously  did  break  and  enter,  with  intent  the 
goods  and  chattels,  moneys  and  property  of  the  said  C.  D.,in  the  said 
dwelling  house  then  and  there  being,  then  and  there  feloniously  and 
burglariously  to  steal,  take  and  carry  away,  contrary,  &c.,  and  against, 
&c.  [Conclude  as  in  book  1,  chap.  3). 

Breaking  into  a  shop  not  adjoining  divelling  house  in  night  time,  with  in- 
tent to  steal,  under  Massachusetts  statute,  1839,  c.  31. 

That  T.  K.  on,  &.c.,  at,  &c.,  the  shop  of  A.  B.,  there  situate,  adjoin- 
ing to  (and  occupied  with  the  dwelling  house  of  said  A.  B.),(/) 
there  situate,  in  the  night  time  did  break  and  enter,  with  intent  the 
goods  and  chattels  of  said  A.  B,,  then  and  there,  in  said  shop  being 
found,  feloniously  to  steal,  take  and  carry  away,  against,  &,c.,  and 
contrary,  &.c.{m)     [Conclude  as  in  book  1,  chap.  3). 

Breaking  into  dwelling  house,  not  being  armed,  with  intent  to  commit  lar- 
ceny, under  Massachusetts  statute. 

That  J.  T.,  &c.,  on,  &c.,  at,  &c.,  in  the  night  time  of  said  day,  with 
intent  to  commit  the  crime  of  larceny,  did  break  and  enter  the  dwelling 
house  of  one  C.  E.,  there  situate,  said  J.  T.  not  being  armed,  nor 
arming  himself  in  said  house  with  a  dangerous  weapon,  nor  making 
any  assault  upon  any  person  then  being  lawfully  therein,  against,  &c., 
and  contrary,  ^c.[n)  {Conclude  as  in  book  1,  chap.  3). 

General  frame  of  indictment  in  New  York. 

That  A.  B.,  late  of,  &c,,  on,  &c.,  with  force  and  arms  about  the 
hour  of  eleven,  in  the  night  of  the  same  day,  at,  &c.,  [setting  forth 
the  object  of  the  burglary),  of  one  C.  D.,  there  situate,  feloniously 
and  burglariously  did  break  and  enter,  &c.,  with  intent  the  goods  and 
chattels  of  the  said  C.  D.,  in  the  said  then  and  there  being,  then 

and  there  feloniously  and  burglariously  to  steal,  take  and  carry  away, 
and  [setting  forth  the  articles  taken),  of  the  goods,  chattels  and  pro- 
perty of  the  said  C.  D.,  in  the  said  then  and  there  being,  then 

{kl()  As  to  the  joinder  of  these  counts,  see  ante,  p.  13 ;  jmst,  p.  196. 

d)  Or  "a  certain  (iwclliiip  Iioukc,"  as  in  Joselyn  v.  Com.,  (i  Mot.  236,  leaving  out  the 
I)hrase,  "and  occujiied  with,"  as  well  as  the  averment  of  owneisliip. 

{m)  This  count  was  approved  in  Joselyn  »,  C'om.,  6  Met.  236,  where  it  was  said  tliat 
with  it  niifrlit  be  coupled  a  count  charffiiifr  the  same  facts  with  the  actual  larceny  in  addi- 
tion, thoujjh  the  court  waived  deeidinfr  whether  there  mifjlit  not  be  cases  where  the  pro- 
secution, tjnder  such  a  joinder,  rnieht  not  be  [)Ut  to  an  election. 

(ii)  'I'liis  iiidiclriicnt  apjjcars  in  'J'ully  v.  Com.,  4  Met.  '.i^>l,  where  the  only  error  as. 
signed  Ijy  the  iearrii  d  and  acute  counsel  who  conducted  the  olfcnce,  was  tiiat  the  woid 
"  burglariously"  was  oiiiilted.     This  the  court,  however,  deemed  unnecessary. 


ARSOX.  183 

and  there  feloniously  and  burglariously  did  steal,  take  and  carry  away, 
to  the  great  damage  of  the  said  C.  D.,  against,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chop.  3). 

Jlgainst  a  person  for  attempting  to  break  and  enter  a  dwelling  house  at 
night,  at  common  laiv.{o) 

That  J.  O'B.,  late  of,  &c,,  on,  &c.,  at,  &,c.,  the  dwelling  house  of 
W.  H.,  there  situate,  about  the  hour  of  twelve  in  the  night  time  of 
the  same,  unlawfully  and  wickedly  did  attempt  and  endeavour  to 
break  and  enter,  with  an  intent  the  goods  and  chattels  of  the  said  W. 
in  the  same  dwelling  house,  then  and  there  being,  feloniously  and 
burglariously  to  steal,  take  and  carry  away,  to  the  evil  example  of 
all  others  in  the  like  case  offending,  and  against,  &c.  (Conclude  us 
in  book  I,  chap.  3). 

Breaking  a  store  house  with  intent  to  enter  and  steal,  at  common  law.{p) 

That  T.  H.,  late  of,  &c.,  on,  &c.,  about  the  hour  of  twelve  in  the 
night  time  of  the  same  day,  at,  &c.,  the  store  house  of  C.  B.,  there 
situate,  unlawfully  and  wickedly  did  break,  with  an  intent  the  same 
store  house  to  enter,  and  the  goods  and  chattels  of  the  same  C.  B.,  in 
the  same  store  house  then  and  there  being,  then  and  there  feloniously 
to  steal,  take  and  carry  away,  contrary,  &c.,  and  against,  &c.  (Con- 
clude as  in  book  I,  chap.  3). 


CHAPTER  III. 


ARSON. 


General  frame  of  an  indictment  for  arson  at  common  law.{a) 

That  A.  B.,  late,  &c.,  a  certain  house(5)  of  one  C.  D.,(c)  feloniously, 
wilfully  and  maliciously  did  set  fire  to,  and  the  same  house  then  and 

(o)  Drawn  in  1787  by  Mr.  Bradford,  then  attorney-general  of  Pennsylvania.         {p)  lb. 

(«)  Tills  form,  with  a  portion  of  the  notes  to  it,  is  drawn  from  Stark.  C.  P.  437. 

(6)  Arson  mijrht  at  common  law  be  committed,  not  only  by  burning'  the  dwelling- 
house,  but  also  the  out-houses,  which  were  parcel  of  the  dwelling  house  ;  VVh.  C.  L.  377  ; 
I  Hale  570;  3  Inst.  67,  6!);  1  Hawk.  c.  39,  s.  1,  2;  and  it  is  not  necessary  to  allege  the 
burningof  the  dwelling  house,  but  only  of  the  house  simply  ;  1  Hale  567,  570  ;  3  Inst.  67 ; 
1  Hawk.  c.  39,  s.  1.  In  Glandfield's  case.  East  P.  C.  1034,  it  was  holden,  that  out-houses 
generally  was  a  sufficient  description  under  9  Geo.  I.  c.  22;  without  showing  of  what 
kind. 

(c)  The  allegation  of  ownership  is  material,  for  it  must  appear  that  the  offence  was 
committed  against  the  property  of  another,  and  this  allegation  must  be  distinctly  proved  ; 
C"oin.  15.  VViide,  17  Pick.  39.');  Pedley's  case,  Leach  277;  Brecniu's  case,  Leach  261 ;  Spald- 
ing's case,  Leach  251;  Ilulmes'  case,  Cro.  Cur.  376;  3  Inst.  66.     lu  the  case  of  tlie  Kick- 


1S4  OFFE\CES  AGAINST  PROPERTY. 

there,  by  such  firing  as  aforesaid,  feloniously,  wilfully  and  malicious- 
ly did  burn,  against,  &c,     [Conclude  as  in  book  1,  chap.  3). 

mans,  East  P,  C.  1034,  the  defendants  were  chargfcd  with  the  arson  of  a  certain  house, 
situate  in  tlie  parisli  of  Ellingham,  &c.,  and  after  conviction,  ail  the  judges  held,  that  the 
conviction  was  wrong,  because  the  indictment  did  not  state  the  ownership.  It  appeared  in 
that  case  that  the  house  belonged  to  the  parish,  and  that  tiuy  suffered  one  Thomas  Early 
to  live  in  it,  but  in  whom  the  legal  estate  was  vested  was  unknown,  and  the  judges  held 
that  it  might  have  been  laid  to  be  the  property  of  the  overseers,  or  of  persons  unknown. 
Where  tiiere  is  a  doubt  in  which  of  several  persons  the  property  vests,  it  should  be  differ- 
ently described  in  different  counts,  in  order  to  obviate  any  objection  on  the  score  of  vari- 
ance. If  the  occupation  be  merely  permissive,  as  by  a  pauper,  of  a  house  belonging  to 
the  parish,  the  pro|>erty  cannot  be  laid  in  him;  vide  svpia,  Rickman's  case;  and  if  such 
pauper  or  mere  servant,  burn  the  house  which  he  inhabit?,  even  exclusively,  he  is  guilty  of 
arson:  Gowen's  case,  East  P.  C.  1027.  Otherwise,  if  the  defendant  has  possession  under 
a  '.case  for  years  ;  Holmes'  case,  Cro.  Car.  376;  3  Inst.  66;  1  Hale  568;  Bieeme's  case. 
Leach  261  ;  Pedlcy's  case,  Leach  277  ;  or  as  mortgagor,  Spalding's  case,  Leach  258. 
But  it  seems  that  if  the  mere  reversion  be  in  the  defendant,  who  has  not  possession,  he 
may  be  guilty  of  the  offence,  by  burning  the  house;  Harris'  case,  Fost.  113;  East  P.  C. 
1023.  In  Spaulding's,  Breeme's  and  Pcdley's  cases,  it  was  holden,  that  in  respect  of  the 
property  against  which  the  offence  was  committed,  the  statute  9  Geo.  I.  c.  22,  did  not  alter 
the  common  law.  The  offence  is  against  tiie  possessions,  and  the  house,  &c.,  should  bo 
described  as  belonging  to  the  person  who  has  possession  coupled  with  an  interest;  for  if 
the  occupation  be  merely  permissive,  the  house  ought  not  to  be  described  as  tlie  occupyer's. 
See  Rickman's  and  Cowen's  cases,  svpra.  In  Glandfield's  case,  East  P.  C.  1034,  it  ap- 
peared that  the  out-houses  burnt,  including  the  brew  house,  were  the  property  of  Blanche 
Silk,  widow,  as  also  was  the  dwelling  house  in  which  she  lived  with  her  son  J.  S.;  that  the 
son  alone  occupied  the  out-houses,  with  the  exception  of  the  brew  house,  on  his  own 
account,  but  without  any  particular  agreement  with  his  mother;  that  she  repaired  the 
dwelling  house  and  out-houses,  and  that  they  jointly  contributed  to  the  ingredients  for  the 
beer,  which  was  brewed  in  the  brew  house,  and  which  was  used  in  the  family.  Mr.  J. 
Heatii  held,  that  the  brew  house  ought  to  be  laid  as  in  their  joint  occupation,  but  the  other 
out-houses  as  in  the  occupation  of  the  son  ;  and  upon  the  indictment  so  drawn,  the  prisoner 
was  convicted  and  executed. 

On  an  indictment  for  setting  fire  to  a  barn  in  the  night  time,  whereby  a  dwelling 
house  was  burned,  charging  the  barn  to  be  the  property  of  G.  and  N.,  it  appeared  that  G. 
was  the  general  owner  of  the  barn,  and  that  part  of  it  was  in  the  occupancy  of  N.,  and  a 
pari  of  it  used  for  the  purposes  of  a  stage  company,  who  had  hired  it  from  G.  by  parol  agrec- 
nient,  for  no  sj>ccified  time,  G.  himself  being  a  member  and  agent  of  the  conipany,  and 
exercising  no  different  cqntrol  over  this  part  of  the  premises  than  he  cxcicised  over  the 
other  way  stations  of  the  company.  It  was  held  that  the  company,  and  not  G.,  was  the 
occupant  of  this  part  of  the  hai-n  ;  and  that  the  allegation  of  the  indictment  that  the  pro- 
jicrty  was  N.  and  G.'s,  was  not  supported  by  the  proof;  Com.  v.  Wade,  17  Pick.  395. 

A  room  in  a  large  building,  which  room  was  separately  leased  by  the  owner  of  the 
building  to  a  merchant  who  occupied  it  as  a  store,  and  having  no  direct  communication 
with  the  other  parts  of  the  building,  is  properly  laid  in  an  indictment  for  arson  as  the  pro- 
perty of  the  lessee ;   State  v.  Sandy,  (a  slave),  3  Iredell  570. 

If  a  man,  by  setting  fire  to  his  own  house,  endanger  others  which  are  contiguous,  lie 
may  be  indicted  for  the  misdemeanor,  and  it  is  unnecessary  in  such  case  to  aver  an  inten- 
tion to  burn  the  contiguous  houses;  1  Hale  568;  Cro.  Car.  377  ;  Scholficld's  case,  Cald. 
397.  But  if  the  defendant  set  fire  to  his  own  house  with  intent  to  defraud  the  insurers, 
and  the  house  of  his  neighbour  he  burnt  in  consequence,  the  offence  will  amount  to  arson; 
|)er  Grose  J.,  in  giving  judgment  in  Probert's  case  ;  East  P.  C.  1030. 

"And  in  Isaac's  case.  East  P.  C.  1031,  where  the  offence  committed  under  such  circum- 
stances, was  laid  as  a  misdcmciinor,  Buller  J.,  directed  an  ac(|uittal  on  the  ground  that  the 
misdemeanor  merged  in  the  ff'Iony.  And  if  tlu;  dc(c:ndant  set  fire  to  his  own  house  with 
int(  lit  to  burn  his  neighbour's  house,  and  the  latter  bo  burnt  in  consequence,  the  offence 
is  as  much  arson  as  if  the  defendant  had  immediately  set  fire  to  his  neighbour's  house; 
therefore  if  A.  intending  to  burn  B.'s  house  set  fire  to  his  own,  and  B.'s  is  burnt  in  conse- 
quc;ncc,  the  indictnu'nt  may  charge  A.  directly  with  the  wilful  and  malicious  burning  of 
B.'s  house;  1  Hale  569;  East  P.  C.  1034.  The  words  maliciously  and  williilly  arc  dcs. 
criptive  of  the  (jfronce  as  ousted  of  clergy  by  the  statute  4  and  5  P.  and  M.  c.  4;  but  they 
are  no  part  of  the  description  under  the  statute  9  Geo.  I.  22  ;  though  under  the  latter  sta- 
tute to  oust  the  oH'cndcr  of  clergy,  it  nmst  ajjpear  that  the  act  was  wilful  and  malicious,  and 
it  fcerns  to  be  safer  so  to  aver  ii.  Sec  1  Hale  567,  569;  3  Inst.  67;  East  P.  C  1033,  1021, 
Mil. ton's  case."  Slarkie's  C.  P.  438. 


ARSON. 


185 


Burning  unfinished  divelling  house,  under  Mass.  Rev.  Stat.{d) 


That  on,  &c.,  at,  &c.,  about  the  hour  of  twelve  o'clock  in  the  night 
time  of  the  same  day,  a  building  of  one  P.  U.,  of,  &c.,  there  situate, 
erected  by  the  said  P.  U.  for  a  dwelling  house,  and  not  completed  or 
inhabited,  feloniously,  wilfully  and  maliciously  did  set  fire  to,  and 
the  same  building,  so  erected  for  a  dwelling  house,  then  and  there, 
by  the  setting  and  kindling  of  such  fire,  did  unlawfully,  wilfully  and 
maliciously  burn  and  consume,  against,  &c.,  and  contrary,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Setting  fire  to  a  building,  whereby  a  dwelling  house  was  burnt  in  the 
night  time,  under  Mass.  Rev.  Stat. 

That  A.  B.,  of,  &c.,  in,  &c.,  on,  &c.,  about  the  hour  of  two  in  the 
night  of  the  same  day,  at,  &c.,  a  certain  building  of  one  C.  B.{e) 
there  also  situate,  called  a  barn,  feloniously,  wilfully  and  maliciously 
did  set  fire  to  and  burn,  and  that  by  the  kindling  of  said  fire,  and  by 
the  burning  of  said  barn,  the  dwelling  house  of  one  E.  F.,  there  also 
situate,  was  then  and  there,  in  the  night  time,  feloniously,  wilfully 
and  maliciously  burnt  and  consumed,  against,  &c.,  and  contrary,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Burning  an  incomplete,  SfC,  dwelling  house,  under  Mass.  Rev.  Stat.{f) 

That  A.  B.,  on,  &c.,  about  the  hour  of  twelve  o'clock  in  the  night 
time  of  the  same  day,  a  building  of  one  P.  U.,  of,  &c.,  there  situate, 

{d)  Com.  tj.  Squire,  1  Met.  258.  This  was  objected  to,  because  there  was  no  averment 
that  the  building  alleged  to  have  been  burnt  was  other  than  that  mentioned  in  Rev.  Stat, 
c.  126,  s.  5.  The  court  held,  however,  that  this  was  not  necessary,  and  further  that  there 
was  no  insensibility  in  "a  building  erected"  being  unfinished.  The  word  "feloniously," 
which  was  part  of  the  indictment,  but  which  is  omitted  in  the  text,  was  rejected  as  sur- 
plusage. 

(e)  In  Com.  v.  Wade,  17  Pick.  395,  it  was  queried  whether  the  averment  of  property 
was  here  necessary;  but  it  was  said  that  when  made  it  must  be  strictly  proved.  The  best 
course  is  to  charge  the  offence  in  two  counts,  one  with  and  the  other  without  the  aver- 
ment. 

(/)  Com.  ».  Squire,  1  Met.  258.  Under  this  indictment  the  court  said:  "The  only  re- 
maining question  to  be  considered  is,  whether  the  offence  is  so  charged  in  this  indictment, 
that  af\er  a  conviction  or  acquittal  thereon  it  will  protect  the  defendant  against  a  second 
indictment  for  the  same  act,  supposing  the  facts  would  have  warranted  originally  an  indict- 
ment for  the  offence  of  the  higher  degree,  embraced  in  the  third  section.  The  difficulty 
here  supposed  also  arises  from  not  stating  in  the  indictment  the  exception  contained  in  the 
fitlh  section.  It  does  not  seem  to  us,  that  the  security  of  the  party  against  being  again 
charged  for  the  same  act,  necessarily  requires  the  form  of  the  indictment  to  be  sucli  as  is 
suggested  by  the  defendant's  counsel.  Upon  this  point  also,  some  aid  may  be  derived 
from  considering  the  course  of  proceeding  in  prosecutions  for  larcenies.  Larcenies,  by  our 
statute,  are  of  various  grades,  and  are  punished  with  greater  or  less  severity,  according 
to  the  aggravation  of  the  offence;  and  these  different  grades  of  offence  are  punished  under 
the  provisions  contained  in  different  and  distinct  sections  of  the  statute.  But  we  know 
very  well  that  in  larcenies,  indictments  are  often  found,  charging  the  inferior  grade  of 
crimes,  and  omitting  the  circumstances  of  aggravation,  when  all  tlie  facts  existing  in  the 
case  would,  if  disclosed  to  the  jury,  bring  the  case  within  the  higher  grade  of  larcenies. 
Would  it  be  a  defence  to  such  indictment,  on  the  trial  before  the  petit  jury,  that  the  de- 
fendant had  committed  the  offence  charged,  but  with  certain  aggravating  circumstances 
not  charged.  It  seems  to  us  not;  and  that  wlicn  the  olfcncc  cliarged  in  tlie  indictment, 
and  tlie  offence  actually  committed,  are  both  merely  larcenies,  the  greater  oflence  includes 

16* 


IS')  OFFF.NCES  AGAIXST   PROPERTY. 

erected  by  the  said  P.  U.  for  a  dwelling  house,  and  not  completed  or 
inhabited,  feloniously,  wilfully  and  maliciously  did  set  fire  to,  and 
the  same  building,  so  erected  for  a  dwelling  house,  then  and  there, 
by  the  setting  and  kindling  of  such  fire,  did  feloniously,  wilfully  and 
maliciously  burn  and  consume,  against,  &c.,  and  contrary,  &c.  \Con- 
cludc  as  in  book  1,  chap.  3). 


Burnivg  a  ineetivg  house,  under  the  Vermont  stalide.(g) 

That  J.  R.,  of,  &c.,  on,  &c,,  at,  &c.,  a  certain  meeting  house,  then 
and  there  situated,  belonging  to  the  First  Calvinistic  Congregational 
Society  in  Burlington  aforesaid,  erected  for  public  use,  to  wit,  for  the 
public  worship  of  Almighty  God,  did  then  and  there  wilfully,  mali- 
ciously and  feloniously  set  fire  to  and  burn,  contrary,  &c.,  and  against, 
&c.     {^Conclude  as  in  book  1,  chap.  3). 


the  less,  and  evidence  proving  tlie  greater  offence  will  support  an  indictment  for  the  smaller 
offence.  Such  being-  the  case,  it  would  seem  necessarily  to  follow,  that  the  conviction  or 
acquittal  of  a  [jaity  thus  charged  witii  the  minor  larceny,  must  be  a  bar  to  a  subsequent 
indictment  charging  the  same  larceny  with  aggravating  circumstances.  The  same  rule 
would  seem  properly  to  apply  to  the  different  gradations  of  offences,  of  maliciously  burn- 
ing  buildings,  as  provided  for  in  the  third  and  fifth  sections  of  the  Rtv.  Slat.  c.  126,  which 
is  also  the  same  statute  in  which  tliere  are  created  four  distinct  grades  of  larcenies,  with 
different  punishments  annexed  to  them.  The  offences  made  punishable  by  the  thiid  and 
Hflh  sections  are  both  only  misdemeanors,  and  the  same  courts  have  jurisdiction  of  eacJi. 
There  would  be  but  one  criminal  act  in  the  malicious  burning  of  a  building,  whether  that 
building  alone  was  consumed,  or  it  occasioned  the  burning  of  any  building  described  in 
the  third  section.  Taking  the  case  under  those  limitations,  we  think  if  the  government 
proceed  by  an  indictment  for  the  smaller  offence,  and  on  trial  thereof  there  be  a  judgment 
of  conviction  or  acquittal,  such  judgment  would  be  a  legal  bar  to  a  second  indictment 
charging  the  same  offence  with  aggravation  ;  State  v.  Cooper,  1  Green  362.  Upon  the 
whole  matter  we  are  therefore  brought  to  the  conclusion,  that  this  indictment  does  set 
forth  the  burning  of  such  a  building  as  is  described  in  the  statute;  that  as  the  facts  stated 
in  the  indictment  constitute  a  misdemeanor  and  not  a  felony,  the  ofTencc  is  well  charged 
in  the  indictment  as  a  misdemeanor,  if  the  word  feloniously  be  rejected  as  surplusage, 
as  we  think  it  may  be,  that  the  indictment  is  sufficiently  particular  in  its  form  of  charging 
the  offence  to  be  punished;  and  finally,  that  a  conviction  or  acquittal  on  this  indictment 
would  be  a  good  bar  to  a  second  indictment  for  the  same  act,  alleging  it  with  the  aggra- 
vating circumstnnces  described  in  the  third  section  of  the  statute.  The  result  therefore  is, 
that  the  motion  in  arrest  of  judgment  nnist  be  overruled,  and  the  punishment  awarded 
against  the  defendant  which  is  prescribed  by  law  in  such  cases." 

(g)  State  V.  Roe,  12  Verm.  93.  Collamer  J. :  "The  indictment  charged  that  the  church 
or  meeting  house  belonged  to  'the  P'irst Calvinistic  Congregational  Society  in  Burlington.' 
The  proof  of  this  allegation  consisted  in  the  paper  prcst  ntcd  and  parol  proof,  that,  from 
1 810,  the  society  has  been  known  by  the  name  of  the  First  (Calvinistic  Congregational 
Society,  in  the  town  of  Burlington  ;  and  that  they  built,  and  have  ever  oeeui)ied  the 
house.  Was  this  sufficient?  The  existence  of  a  society  or  corporation,  de  facto,  is  suffi- 
cient, and  that  is  always  shown  by  parol.  Even  had  it  b<(  n  shown  that,  in  point  of  fact, 
the  society  never  were  organized  and  never  were  a  corporation,  it  was  of  no  importance. 
The  burning  of  the  meeting  house  would  be  arson  within  our  statute,  tlioiigh  it  did  not 
belong  to  a  corporation. 

"But,  it  is  said,  there  is  a  variance  in  the  name.  They  take  no  name  in  the  writing. 
They  might  have  many  names  by  leputalion,  and  they  are  not,  in  the  indictment,  attempt- 
ed to  be  dfscribid  by  name,  but  by  general  character  or  tenet;  and  the  words,  as  to  loca- 
tion, in  the  town  of  Burlington,  and  in  Burlington,  are  in  substance  the  same.  This  whole 
allegation  and  its  materiality,  will  come  again  under  consideration  on  the  motion  in  ar- 
reat." 


ARSON'.  187 

For  hurnivg  one's  own  house  icith  intent  to  defraud  the  insurers.{h) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  feloniously,  wilfully,  mali- 
ciously and  unlawfully  did  set  fire  to  a  certain  house  being  in  the  pos- 
session of  him  the  said  A.  B.,  with  intent  thereby  to  injure  and  de- 
fraud the  London  Assurance,  of  houses  or  goods  from  fire,  (then  and 
there  being  a  body  corporate),  against,  &c.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

Burning  a  barrack  of  hay,  under  Pennsylvania  statute.{i) 

That  H.  C,  late,  &c.,  on,  &c.,  at,  &c.,  feloniously,  unlawfully,  wil- 
fully and  maliciously  did  set  fire  to  a  certain  barrack  of  hay  of  A. 
B.,  there  situate,  with  intent  to  destroy  the  same,  to  the  great  damage 
of  the  said  A.  B.,  contrary,  &c.,  and  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

Burning  stable,  under  sa?ne. 

That  the  said  H.  C,  at  the  county  aforesaid,  on  the  day  and  year 
aforesaid,  and  within  the  jurisdiction  of  this  court,  with  force  and 
arms,  feloniously,  wilfully  and  maliciously  did  set  fire  to  and  burn  a 
certain  stable  of  the  aforesaid  A.  B.,  there  situate,  to  the  evil  example 
of  all  others  in  like  case  offending,  contrary,  &c.,  and  against,  &.c. 
{Conclude  as  in  book  1,  chap.  3). 

.Attempting  to  set  fire  to  and  break  in  a  house,  under  Mass.  statute.(j) 
That  A.  B.,  at,  &c.,  on,  &c.,  about  the  hour  of  nine  in  the  night 

(A)  This  form  was  prepared  under  the  English  statute,  but  it  is  probable  that  it  would 
be  good  at  common  law,  leaving  out  the  "feloniously;"  see  ante,  p.  184. 

(i)  This  form,  with  the  necessary  alterations,  is  based  on  Ciiapman  v.  Com.,  5  VVh.  427. 
Per  curiam:  "  Tlie  word  'maliciously'  in  the  first  count,  may  pass  as  an  equivalent  for 
tlie  word  'wilfully;'  but  the  words  'barrack,  rick  or  stack  of  hay,  grain  or  bark,' as 
much  import  a  barrack  of  hay  or  grain,  as  they  do  a  rick  or  stack  of  hay  or  grain.  They 
were  used  elliptically  in  the  context,  to  avoid  repetition.  The  statute  is  an  amplification 
of  the  act  of  1767,  under  a  mitigated  punishment;  and  it  is  to  be  remarked,  that  it  was 
not  indictable  on  tliat  act,  tiiough  it  is  so  now,  to  burn  a  barn  'unless  it  had  hay  or  corn 
therein.'  It  is  not  credible,  therefore,  that  the  legislature  did  not  formerly  extend  as 
much  protection  to  a  barn  as  they  subsequently  intended  to  extend  to  a  barrack,  which, 
in  Pennsylvania,  is  an  erection  of  upright  posts  supporting  a  sliding  roof  usually  of  thatch; 
for  of  all  the  buildings  on  a  farm,  it  is  the  cheapest,  and  that  which,  independently  of  the 
property  housed  by  it,  offers  the  least  incitement  to  malicious  mischief  It  is  not  gene- 
rally, if  at  all,  used  by  the  tanner  to  cover  his  bark  ;  but  containing  that  material,  its  con- 
tents would  be  within  the  words  of  the  statute,  and  the  protection  intended  to  be  given  by  it. 

"  The  second  count  is  for  feloniously  burning  a  stable,  which  is  undoubtedly  a  subject  of 
the  statutory  offence,  independent  of  its  contents;  but  as  it  does  not  conclude  against  the 
form  of  the  statute,  and  there  is  no  such  felony  at  the  common  law,  there  is  no  count  in 
tiie  indictment  on  which  the  judgment  can  be  rested." — The  form  in  the  text  is  modified 
to  meet  the  opinions  of  the  court.     See  count  for  same  on  next  page. 

(j)  Com.  V.  Harney,  10  Met.  422,  425.  "Dewey  J.:  The  counts  in  this  indictment 
are  not  bad  for  duplicity.  It  is  true  that  they  set  forth  a  breaking  and  entering  in  the 
nighttime,  of  a  certain  building  therein  described;  but  tiiat  allegation  is  only  inTroduced 
as  a  part  of  the  various  acts  charged  to  have  been  committed  by  the  delindanf,  all  which 
combined,  authorize  the  charge  of  the  specific  offence  made  [innishabic  by  Rev.  .Statutes 
c.  13.3,  s.  12.  It  is  not  unusual  to  find  in  a  count  projierly  framed,  all  the  essential  ele- 
ments of  a  count  for  a  minor  offence,  and  presenting  the  objection  of  dui)lieity  quite  as 
strongly  as  the  present  ease.  Tmi^,  in  an  indictment  for  murder  or  manslaugiiter,  tliere 
is  a  full  and  technical  eliargc  of  an  assault  and  battery.     In  burglary,  when  an  actual  hr- 


188  OFFENCES  AGAINST  PROPERTY. 

time  of  the  same  day,  did  attempt  wilfully  and  maliciously  to  set  fire 
to  and  burn,  in  the  night  time,  a  certain  dwelling  house  there  situate, 
of  one  C.  D.,  and  in  such  attempt  did  tiien  and  there  break  and  enter 
a  certain  out-house,  then  and  there  situated,  of  the  said  C.  D.,  and 
within  the  curtilage  of  said  dwelling  house,  and  did  then  and  there 
procure  and  collect  together  certain  shavings  and  combustible  sub- 
stances, and  did  then  and  there,  in  said  out-house,  set  fire  to,  kindle 
and  burn  said  shavings  and  combustible  substances,  with  the  intent 
then  and  there  to  set  fire  to  and  burn,  in  the  night  time,  the  dwelling 
house  aforesaid,  and  towards  the  commission  of  such  offence,  but 
was  then  and  there  intercepted  and  prevented  in  the  execution  of  the 
same,  &c. 

[^Fhe  second  count  alleged  that  the  defendant,  at  the  time  and  place 
mentioned  in  the  ^rst  count,  attempted  to  set  fire  to  and  hum,  in  the 
night  time,  a  certain  shop  of  said  C.  D.,  u-itliin  the  curtilage  of  his 
dwelling  house,  and  in  such  attempt  broke  and  entered  said  shop,  and 
there  procured,  and  collected  shavings,  ^-c,  and  set  fire  to,  kindled  and 
burned  them  in  said  shop,  with  intent,  in  the  iiight  time,  to  set  fire  to  and 
burn  said  shop,  hut  was  intercepted  and  preiiented. 

The  third  count  iras  like  the  second,  except  that  the  wood  building 
iras  substituted  for  shop,  and  it  iras  not  alleged  that  said  building  ivas 
within  the  curtilage  of  said  C.  D.^s  dwelling  liouse\ 

Burning  a  stahle.{h) 

That  W.  D.,  late,  &.c.,  not  having  the  fear  of  God  before  his  eyes, 
but  being  moved  and  seduced  by  the  instigation  of  the  devil,  on,  &c., 
at  the  county  aforesaid,  a  certain  stable  of  one  T.  F.,  containing  then 
and  there  one  ton  of  hay  there  situate,  feloniously,  maliciously  and 
voluntarily  did  set  fire  to,  and  the  said  stable  and  the  hay  therein 
contained  as  aforesaid,  did  then  and  there  feloniously,  maliciously 
and  voluntarily  burn  and  consume,  contrary,  &c.,  and  against,  &c. 
[Conclude  as  in  book  \,  chap.  3). 

ccny  is  allcj^cd  as  perpetrated  after  entry,  there  is  a  technical  charge  of  larceny ;  but  if 
connected  vvilli  tlie  actual  brcakingr  and  entering-,  and  set  forth  in  the  same  count,  llic 
count  is  not  bad  for  duplicity.  In  an  indictment  for  a  battery,  an  assault  prccedinjr  the 
battery,  is  allejred,  and  in  sufficiently  technical  terms,  but  the  count  is  good  for  a  battery, 
and  not  objectionable  for  duplicity.  In  the  present  case,  the  propriety  of  setting  forth  the 
various  acts  of  the  defendant,  connected  with  the  attempt  to  set  fire  to  the  building,  is 
quite  obvious;  the  statute  itself  making  the  crime  to  consist  in  attemjiting  to  commit  an 
offence  prohibited  by  law,  and  in  sueii  attempt  doing  any  act  towards  the  commission  of 
sucli  offence;  Rev.  Stats,  uhi  sup,  The  various  acts  of  the  defendant  done  in  the  attempt 
to  set  fire  to  the  building,  were  properly  set  forth  in  this  indictment,  and  the  objection  of 
duplicity  is  not  well  sustained. 

"The  next  objection  relied  upon  is  that  of  a  variance  between  the  proof  and  the  indict- 
ment, in  the  matter  of  the  ownership  of  the  building  attem])ted  to  be  set  on  fire.  The  in- 
dictment alleged  the  same  to  be  in  one  Bernard  Walmire.  The  proof  was,  that  said  Wal- 
niire  was  joint  lessee  with  another  person.  This  might  have  been  a  fatal  variance,  but 
for  the  provision  in  the  Kev.  Stat.  c.  133,  s.  11.     This  entirely  obviates  the  objection. 

"'I'lic  provision  is,  that  in  the  prosecution  of  any  offence  affecting  any  real  estate,  it 
shall  b(;  a  suHicient  allegation,  and  not  deemed  a  variance,  if  it  be  proved  on  the  trial  that 
any  part  of  such  estate  was  in  the  person  alleged  in  the  indictment  to  be  the  owner 
then-of." 

(A-;  This  count  was  framed  in  1791,  by  .Tared  Ingcrsoll  Esq.,  at  the  time  attorney-gene- 
ral of  Pennsylvania.    Sec  count  nc.\l  but  one  preceding. 


ROBBERY. 


CHAPTER   IV. 


ROBBERY. 


189 


General  frame  of  indictment  at  common  laic.{a) 

That  A.  B.,  &,c.,  in  the  highway  there,  in  and  npon  one  E.  F.  there 
being,(6)  feloniously  did  make  an  assault,  and  him  the  said  E.  F.,  in 
bodily  fear(c)  and  danger  of  his  life  in  the  highway  aforesaid,  then 
and  there  feloniously  did  put,  and  one  gold  watch  of  the  value  of 
{insert  goods  taken  as  in  /</rce«?/),of  the  goods  and  chattels  of 
the  said  E.  F.  from  the  person,  and  against  the  will  of  the  said  E.  F.  in 
the  highway  aforesaid,  then  and  there  ieloniously  and  violently  did 
seize,  take  and  carry  away,  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 

For  a  capital  robbery,  the  fri sorter  being  armed  icith  a  dangerous  wea- 
pon, and  actual///  striking  and  vnunding  the  -person  assaulted  and 
robbed;  on  the  latter  clause  of  the  first  section  of  Mass.  statute  of 
1818,  c.  124. 

That  T.  G.and  J.  B.,  of,  &c.,on,  &c.,  a1,  &c.,  in  and  upon  one  C.  C. 
feloniously  did  make  an  assault,  and  sundry  bank  bills,  &c.,  of  the 
value  of  dollars,  of  the  moneys  and  property  of  him  the  said  C. 

C,  from  the  person  and  against  the  will  of  him  the  said  C.  C,  then 
and  there  feloniously  and  by  force  and  violence,  did  rob,  steal,  take 
and  carry  away,  and  that  they  the  said  T.  G.  and  J.  B.,  at  the  time  of 
committing  the  assault  and  robbery  aforesaid,  were  then  and  there 
armed  with  a  certain  dangerous  weapon,  made  of  iron,  to  wit,  a' pis- 
tol, and  being  then  and  there  so  as  aforesaid  armed,  they  the  said  T. 
G.  and  J.  B.  with  the  dangerous  weapon  aforesaid,  him  the  said  C.  C, 
in  and  upon  the  face  and  head  of  him  the  said  C.  C,  then  and  there 
feloniously  did  actually  strike  and  wound,  and  with  force  and  violence 
did  then  and  there  feloniously  throw  him  on  the  ground,  against,  &c., 
and  contrary,  &LC.{d)     {Conclude  as  in  book  1,  chap.  3). 

(ar)  For  this  form,  see  Stark.  C.  P.  441. 

(6)  It  is  essential  to  aver,  that  the  assault  be  laid  as  feloniously  made;  VVh.  C.  L.  101; 
Stark.  C.  P.  99. 

(c)  It  is  necessary  to  aver,  tiiat  the  property  was  taken  with  violence  from  the  person,  and 
ngfuinst  the  will  of  the  party;  Fost.  \.2S  ;  1  Hale  534;  Leach  229.  "The  allegation  that 
the  party  was  put  in  fear  is  of  modern  introduction  ;  and  in  Donally's  case,  Leach  229,  it 
was  observed  by  the  judjjcs,  that  no  technical  description  was  necessary,  provided  it  ap- 
peared on  the  whole,  that  the  offence  had  been  committed  with  violence,  and  against  the 
v.'ill  of  the  party.  And  in  Smith's  case.  East  P.  C.  783,  the  prisoner  was  charged  with 
assaulting  the  prosecutor  with  force  and  arms,  and  putting  him  in  corporal  fear,  and  taking  a 
sum  of  money  from  his  person,  against  his  will;  it  was  objected  that  the  taking  ought  to 
have  been  alleged  to  have  been  done  violently,  but  all  the  judges  agreed,  that  a  robbery 
was  sufficiently  described,  and  that  Loid  Hale  (1  Hale  534),  was  inaccurate  in  his  ex- 
pression ;"  Stark.  C.  P.  442. 

(</)  This  form,  to  which  no  exception  was  found  in  Com.  »,  Gallagher,  6  Met.  565,  is 
but  little  varied  from  that  given  by  Mr.  Davis,  p.  151.  The  allegation  in  brackets  is  per- 
haps surplusage,  and  in  the  last  named  case  it  was  held  that  the  general  averment  of 
wounding  in  flio  indirtment  was  not  sustained  liv  evidence  of  a  slight  scratch  given,  nor 
that  of  striking  by  evidence  of  a  pulling  down  by  the  action  ot'the  iiands  round  ilic  prose- 
cutor's neck. 


190  OFFENCES  AGAINST  PROPERTY. 


CHAPTER  V 


LARCENY. 


General  frame  of  indictment  at  common  law. 

That  A.  B.,one  hat,(a)  of  the  value  of  one  dollar,(6)  of  the  goods 
and  chattels  of  C.  D.,(c)  then  and  there  being  found,  feloniously  did 
steal,  take  and  carry  away.(fZ)     {Conclude  as  in  book  1,  chap.  3). 


(a)  The  articles  alleged  to  be  stolen  should  be  dcsciibed  specifically  by  the  names  by 
which  they  are  commonly  known;  and  their  number,  quantity  and  value  set  forth;  Wli. 
C.  L.  89.  A  lumping  description  will  not  do;  but  each  individual  article  must  be  in- 
dividually set  forth;  thus,  "twenty  wethers  and  ewes"  would  be  bad  for  uncertainty  ;  the 
actual  number  of  each  should  be  stated;  2  Hale  183;  Archbold's  C.  P.  9th  ed.  45.  But 
when  the  articles  are  of  the  same  kind  they  can  be  joined  numeratively,  as  "  six  pair  of 
slices  of  the  value,  &c.,  one  hat  of  the  value,  &lc.;  Wh.  C.  L.  89.  "Six  handkerchiefs," 
is  good  though  the  handkerchiefs  were  in  one  piece,  the  pattern  designating  each ;  6  Term 
R.267;  ]  Ld.  Raym.  149.  It  has  been  held  enough  to  say,  "one  hide  of  the  value,"  &c.; 
State  u.  Dowell,  3  Gill  &  J.  310;  "one  book,"  &,c.,  without  describing  its  name;  State  b. 
Logan,  1  Mo.  377  ;  "  one  shovel  plough  ;"  State  v.  Sansom,  3  Brevard  5  ;  "  and  a  parcel 
of  oats  ;"  State  v.  Brown,  1  Dev.  137.  The  proof  as  to  the  description  of  articles  must  cor- 
respond with  the  allegation  ;  but,  as  to  the  number,  quantity  or  value,  a  variance  between 
the  statement  and  proof  as  will  be  seen,  is  wholly  immaterial;  R.  v.  Johnson,  3  M.  &.  S. 
148,  539.  If  a  statute  makes  a  distinction  between  things  belonging  to  the  same  class, 
or  commonly  comprehended  within  one  general  term,  it  is  essentially  necessary  to  indi- 
cate the  particular  thing,  and  the  general  term  will  not  be  sufficient ;  R.  v.  M'Dermott,  R. 
&  R.  356;R.  v.  Baffin,  ib.  365. 

Where  a  statute,  15  Geo.  II.  c.  34,  specified  "  lambs"  as  well  as  "  sheep,"  and  the  indict- 
ment was  for  stealing  sheep,  evidence  of  stealing  Iambs  was  held  not  to  support  it ;  R.  v. 
Loom  and  others,  1  Mood.  C.  C.  160;  R.  v.  Cook,  2  East  P.  C.  616.  A  charge  of  steal, 
ing  "one  sheep"  is  not  supported  by  proof  of  stealing  an  animal  under  a  year  old,  called 
a  "lambteg;"  it  should  have  been  laid  "one  lamb;"  R.  v.  Birkett,  supra;  though  in  De- 
laware a  contrary  ruling  was  had;  State  v.  Tootle,  2  Harringt.  541.  (A  charge  of  steal- 
ing lambs  is  supported  by  proof  of  finding  the  carcasses  in  the  owner's  ground,  and  only 
the  skins  carried  away;  R.  v.  Rawlins,  2  East  P.  0.  617).  It  was  long  held  in  7  and  8 
Geo.  IV.  c.  29,  s.  25,  that  an  indictment  for  stealing  a  sheep  would  not  be  supported  by 
proof  of  stealing  a  ewe,  because  that  statute  specifies  "ewe,  ram  and  lamb,"  as  well  as 
"  sheep ;"  R.  v.  Puddifoot,  ih.  247  ;  and  "  sheep"  in  that  act  means  "  wether"  only  ;  R.  v.  Bir- 
kett, 1  C.  &-  P.  216.  But  a  "  rig  sheep"  was  held  well  described  as  "one  siieep;  R.  v.  Stroud, 
6  C.  &.  P.  535,  Alderson  B.;  and  now  by  a  later  decision,  where  the  sex  of  the  stolen  ani- 
mal could  not  be  ascertained  from  inspecting  those  parts  of  the  skin  and  flesh  which  re- 
maincd,  an  indictment  charging  the  stealing  of  a  sliecp  was  held  sufilcient,  even  assuming 
that  the  shee|)  stolen  was  not  a  wether,  but  "  a  ram,  ewe  or  lamb ;"  ibr  those  words  may 
be  rejected,  the  word  "sheep"  in  the  act  being  a  generic  term  ;  R.  v.  M'CuUey,  2  Mood. 
C  C.  34.  Under  thu  Tennessee  statute,  in  wliieh  "  gelding"  and  "  horse"  arc  distinguished, 
evidence  of  stealing  the.  former,  will  not  support  an  indictment  for  stealing  the  latter; 
Tulley  V.  State,  3  Humph.  323  ;  though  it  would  seem  that  "  equus''  in  the  Latin  pleadings 
in  trover  was  satisfied  by  proof  of  a  fie.ldin<T ;  Gravely  ».  Ford,  Ld.  Raym.  1209.  Where 
the  larceny  of  dead  animals  is  charged,  if  the  animal  has  another  appellation  when 
living  from  when  dead,  or  if  it  is  governed  by  a  dillerent  law  of  property,  it  nmst  be 
laid  as  dead,  otherwise  it  will  have  been  presumed  to  have  been  alive,  and  the  va- 
riance will  be  fatal;    R.  v.  Puckering,    1    Mood.   C.  C.  242;  Wli.  C.  L.  91. 

The  principle  is  familiar,  that  no  matter  how  many  distinct  articles  are  contained  in 
the  indictment,  the  proof  of  the  stealing  of  the  one  only  will  be  enough  to  supjiort  a  con- 
viction ;    Wh.  C.  L.  91  ;    Dick.  Q.  S.  6th  cd.  222 ;  post,  p.  193,  n./. 

Larceny  does  not   lie  for  a  thing   wiiieii  is  not   the  siilijeet  of  determinate   property,  as 


LARCENY.  101 

waifs,  treasure  trove,  &c.,  Wh.  C.  L.  391 ;  though  deerskins,  hung  up  in  an  Indian  camp, 
Pa.  V.  Becotnb,  Add.  3eiG ;  and  clothing,  found  on  a  dead  body,  on  shore,  from  a 
wreck,  aie  not  subject   to  tiiis   rule;   VVenson  v.  Say  ward,    13  Pick.  4U2. 

The  goods  must  be  personal  goods,  and  of  intrinsic  value  in  which  some  one 
has  a  property,  and  they  must  not  be  connected  with  lands  or  buildings  at  the 
time  of  taking.  They  must  be  things  of  intrinsic  value ;  and,  therefore,  if  they  are 
valuable  only  as  evidence  of  claims  or  demands,  or  title  to  land,  as  notes,  orders,  bills,  or 
deeds,  they  are  not  at  common  law,  the  subject  of  larceny,  although  protected  by  statute, 
Arch.  C.  P.  9th  ed.  165;  Wh.  C.  L.  392  ;  State  v.  Tillery,  1  N.  &  M'C.  9 ;  Cress  c.  State, 
1  Port.  83  ;  State  v.  Wilson,  2  Tr.  Con.  S.  C.  R.  49  ;  State  v.  Holbrook,  13  Johns.  90  ;  R.  v. 
Westbeer,  Stra.  1 133;  East  P.  C.596.  In  the  last  case  the  writing  stolen  concerned  the  realty ; 
but  stealing  the  parchment  on  which  a  record,  &c.,  of  a  court  of  justice  not  concerning  the 
realty  is  written,  is  now  indictable  in  England  as  a  misdemeanor  by  the  enactments  of  7 
and  8  Geo.  IV.  c.  29,  s.21,  (see  R.  v.  Walker,  1  Mood.C.  C.  155),  and  was  previously  indict- 
able as  a  larceny  at  common  law  if  stated  as  so  much  parchment ;  ib.  It  seems  that 
where  the  evidence  fails  to  support  a  verdict  in  a  count  charging  the  larceny  of  the  instru- 
ment under  its  teelmical  description,  there  may  be  a  conviction  on  a  count  charging  the 
larceny  of  a  piece  of  paper ;  R.  v.  Perry,  1  C.  &  K.  725.  So  it  is  no  larceny  to  take 
animals  which  are  regarded  as  of  a  base  nature,  as  dogs,  cats,  foxes,  monkeys  and  ferrets, 
altliough  domesticated,  which  do  not  directly  or  indirectly  serve  for  food,  and  the  value  of 
which  is  merely  accidental  or  imaginary;  Hawk.  b.  1,  c.  33,  s.  36;  and,  accordingly,  it 
has  been  held,  that  an  indictment  for  stealing  "five  live  tame  ferrets  confined  in  a  hutch," 
could  not  be  supported,  although  it  was  proved  that  the  animals  were  tame,  and  had  been 
sold  by  the  prisoner  for  nine  shillings ;  R.  v.  Searing,  R.  «Sl  R.  350.  Dogs,  however,  when 
taxed,  are  subject  in  Pennsylvania  to  a  ditFerent  rule;  Wh.  C.  L.  388.  Bees,  which  when 
confined  in  a  hive  are  protected,  cease  to  be  so  when  unreclaimed,  though  they  may  hap- 
pen to  be  confined  in  a  tree  by  the  owner  of  it;  Waleis  v.  Mease,  3  Binn.  546. 

They  must  be  things  in  wiiich  some  one  has  a  property ;  and,  therefore,  animals /frffi  na- 
ture and  unreclaimed,  as  deer  in  a  forest,  conies  in  a  warren,  a  marten  when  caught  in  a 
trap  in  the  woods,  Norton  v.  Ladd,  5  N.  Hamp.  203,  fish  in  the  sea  or  in  rivers,  game  and 
wild  fowl,  unless  domesticated,  are  not  the  subjects  of  larceny  ;  1  Hale  5IU.  A  reclaimed 
hawk  is  the  subject  of  larceny,  if  known  to  be  so;  1  Hale  512.  So  are  swans,  though  at 
l.irge  in  a  public  river,  if  lawfully  marked,  or  whether  marked  or  not,  if  in  a  private  water, 
Dalt.  c.  156.  But  when  appropriated  and  confined,  e.  g.  fish  in  a  trunk  or  net,  partridges 
or  pheasants  in  a  meadow,  deer  so  enclosed  in  a  park  as  to  be  taken  out  at  pleasure ;  1 
Hule  511 ;  1  Hawk.  c.  33,  s.  39  ;  or  so  tamed  as  to  be  habituated  to  return  to  a  place  pro- 
vided by  the  owner,  these  animals  being  "  under  propriety,"  become  the  subject  of  larceny, 
as  for  instance  a  dove,  when  in  its  master's  dove  cote;  Com.  v.  Chace,  9  Pick.  15  ;  R.  v. 
Brooks,  4  C.  «fe  P.  131.  When  killed,  their  flesh  and  skin  are,  in  like  manner,  the  pro- 
pcrty  of  the  lawful  possessor.  On  the  same  principle  a  man  may  be  indicted  for  steal- 
ing ice  when  stowed  away  in  an  ice  house  for  domestic  use;  Ward  v.  People,  3  Hill 
N.  k.  R.  395;  6  ib.  144. 

They  must  be  things  unconnected  with  land  or  buildings  at  the  time  of  the  taking,  or  no 
larceny  will  be  committed  at  common  law  by  their  being  severed  and  immediately  re- 
moved. Thus  it  was  no  larceny  to  dig  and  carry  away  minerals  from  the  earth,  to  pull 
down  and  carry  away  any  part  of  a  building;  to  cut,  gather  and  take  corn  and  fruit,  or  to 
tell  trees;  1  Hale  509,  510.  But  if  any  of  these  things  be  at  one  time  severed  by  the 
otfender  from  the  land,  and  removed  by  him  at  another  time,  though  the  severance  was  by 
the  otfender  himself,  so  that  the  severance  and  the  removal  cannot  be  regarded  as  one  con- 
tinued act,  the  removal  will  be  a  larceny.  Thus,  if  coal,  &.C.,  be  raised  from  a  mine  in 
day  time,  and  laid  on  the  surface  of  the  ground  at  the  mouth  of  tlie  pit,  and  carried  away 
at  night  by  the  same  party,  or  if  corn  be  cut,  or  fruit  gatliered,  or  timber  felled,  at  one 
time,  and  afleran  interval  be  carried  away,  witliout  such  a  continued  presence  of  the  thief 
as  to  make  the  taking  and  carrying  away  one  continued  act ;  1  Hale  510;  or  if  copper 
be  severed  from  the  brickwork  in  which  it  is  set  during  the  day  time,  and  carried  otFat 
ni;rht  by  the  same  party;  Lee  v,  Risdon,  7  Taunt.  191,  tiiese  will  be  larcenies;  Dickin- 
son's Q.  S.  6th  ed.  238.  _ 

(6)  Some  value  must  be  attached  to  the  article  stolen,  or  tlie  indictment  will  be  bad  ; 
Wii.  C.  L.  90,  405;  Rose.  Cr.  Ev.  512;  People  v.  Pavne,  G  Johns.  103  ;  State  v.  Tillery,  1 
N.  &  M'C.  9;  People  v.  Wiley,  3  Hill  N.  Y.  R.  194';  State  v.  Wilson,  I  Port.  110  ;  State 
t.  Bryant,  2  Car.  L.  R.  269 ;  State  c.  Thomas,  2  M'C.  527.  Thus  indictments  charging 
the  defendant  with  stealing  a  thing  destitute  of  value,  or  to  which  no  value  is  assigned, 
will  be  quashed;  State  v.  Bryant,  2  Car.  L.  R.  617  ;  Wilson  v.  State,  1  Port.  118.  It  is 
best  to  give  a  separate  value  to  each  distinct  article  included  in  an  indictment,  as  other- 
wise the  offence  must  be  made  out  as  to  ail  the  articles,  as  the  grand  jury  has  ascribed  a 


192  OFFEiVCES  AGAINST   PROPERTY. 

value  to  all  of  tliom  cnllccUvcly  ;  II.  v.  Forsyth,  R.  &,  R.  274.  If  value  be  given  to  some 
of  the  articles  introduced,  and  not  to  the  remainder,  judgment  will  be  arrested  as  to  the 
part  to  which  no  value  is  given;  Com.  v.  Smith,  1  Mass.  245;  People  v.  Wiley,  3  Hill  N. 
Y.  R.  194.  As  has  just  been  noticed,  where  there  is  a  difficulty  in  the  description  of  a  note 
or  other  instrument  stolen,  it  is  advisable  to  insert  a  count  for  the  larceny  of"  one  piece  of 
paper  of  the  value  of  one  penny,"  and  it  would  seem  that  this  assignment  of  value  is  suffi- 
cient, {see  last  note).  In  those  states  where  the  distinction  between  grand  and  petty  lar- 
ceny is  abolished,  it  is  immaterial  whether  the  goods  be  proved  to  be  of  the  value  laid  in 
the  indictment  or  not;  Arch.  C.  P.  10th  ed.  49,  101,  211. 

(c)  As  has  been  already  observed,  it  is  of  necessary  importance  that  the  name  of  the 
party  whose  goods  are  alleged  to  liave  been  stolen,  should  be  given  correctly  ;  see  ante,  p. 
10;  Arch.  C.  P.  10th  ed.  176.  In  applying  this  principle,  there  are  one  or  two  points 
which  it  is  essential  to  keep  in  mind  in  determining  the  question  of  property  in  each  par- 
ticular case. 

1.  Where  goods  arc  stolen  out  of  the  possession  of  a  bailee,  they  may  be  described  in  the 
indictment  as  the  property  of  either  bailor  or  bailee;  Wh.  C.  L.  404;  Arch.  C.  P.  10th  ed. 
212;  State  u.  Somerville,  21  Maine  586;  State  v.  Grant,22  Maine  171.  The  cases  usually 
given  as  an  illustration  of  this  rule  are  those  of  goods  left  at  an  inn;  R.  v,  Todd,  2  East 
P.  C.  658 ;  cloth  given  to  a  tailor  to  manufacture  and  linen  to  a  laundress  to  wash ;  R.  v. 
Packer,   2  East  P.  C.  658;  chattels  entrusted  to  a  person  for  safe-keeping;  R.  v.  Taylor, 

1  Leach  356  ;  R.  v.  Slatham,  ib.;  see  R.  v.  Ashley,  1  C.  &.  K.  198  ;  goods  levied  on  by  a 
constable  and  in  his  custody  ;  People  v.  Palmer,  10  Wend.  165  ;  in  each  of  these  cases 
the  property  may  be  laid  as  the  goods  and  chattels  of  the  bailee  or  of  the  owner,  at  the  option 
of  the  prosecutor;  see  2  Hale  181  ;  1  ib.  613;  1  Hawk.  c.  33,  s.  47  ;  R.  v.  Bird,  9  C.  & 
P.  44.  But  the  bailee  of  a  bailee  has  no  such  special  property  as  would  authorize  the 
goods  being  laid  as  his.  Tlius  an  indictment  will  be  vicious  which  lays  the  property  of 
goods  taken  in  execution  in  the  bailee  or  receipter  of  the  sheritF;  Com.  v.  Morse,  14  Mass, 

(217;  Norton  v.  People,  8  Cow.  137.  The  property  also  cannot  be  laid  in  one  who  has  neither 
had  the  actual  nor  constructive  possession  of  the  goods,  and  thus  where  the  person  named 

I  as  owner  was  merely  servant  to  the  real  owner,  or  where  the  property  was  laid  in  the 
master  who  actually  had  never  seen  or  received  the  goods,  and  where  in  fact  the  servant 
had  been  specially  entrusted  with  them,  tiie  ownership  was  held  to  be  wrongly  laid  ;  R.  v. 
Hutchinson,  R.  &  R.  412  ;  R.  v.  Ruddick,  8  C.  &,  C.  237. 

2.  Goods  stolen  from  a  dead  person,  such  as  the  coffin  or  siiroud,  must  be  laid  in  the 
executors  and  administrators,  if  there  be  such,  and  if  not,  in  the  person  who  defrayed  the 
e.xpenses  of  the  funeral;  Wh.  C.  h.  404. 

3.  Goods  stolen  from  a  married  woman  must  be  invariably  laid  as  the  property  of  her 
husband,  even  though  she  lives  in  separation  from  him,  with  an  income  vested  in  trustees 
for  her  private  use;  Wh.  C.  L.  404;  Arch.  C.  P.  10th  ed.  213.  But  where  goods  were 
stolen  from  a  singlewoman,  who  afterwards  before  indictment  married,  it  was  held  that 
the  property  was  rightly  laid  in  her  by  her  maiden  name  ;  R.  v.  Turner,  1  Leach  536. 

4.  At  common  law  where  the  owners  form  an  unincorporated  partnershij),  the  names  of  all 
of  them  must  be  correctly  stated  ;  Wh.  C.  L.  405;  and  even  where  the  property  was  tem- 
porarily vested  in  one  of  them,  the  names  of  all  the  members  of  the  firm  must  be  set  out ; 
Hogg  V.  State,  3  Blackf  326;  R.  v.  Shovington,  I  Leach  513;  R.  v.  Bcacall,  1  Mood.  C. 
(-.  15.  But  if  the  goods  of  a  corporation  are  stolen,  the  projjerty  nmst  be  charged  to  be 
in  the  corporation  in  its  corporate  name,  and  not  in  the  individuals  who  comprise  it ;  R. 
V.  Patrick,  2  East  P.  C.  1(I5J  ;  1  Leach  253;  Arch.  C.  P.  10th  ed.  214.  It  is  not  nc- 
ccssary,  it  seems,  to  aver  the  political  existence  of  the  corportion,  as  that  is  a  matter  for 
evidence,  and  alter  verdict  it  may  be  inferred  from  the  corporate  name;  Lithgow  t>.  Com., 

2  Va.  C;ases  296. 

5.  Nec(;ssarics  furnished  by  a  parent  to  a  child,  may  be  laid  as  the  property  of  cither 
parent  or  child  ;  Arch.  C.  P.  lOtli  cd.213  ;  2  East  P.  C.  654;  though  it  is  safer  to  allege 
them  to  be  the  property  of  the  child  ;  R.  v.  Forsgatc,  1  Leach  463  ;  R.  v.  Hughes,  C. 
&,  M.  593. 

6.  Where  the  owner  is  unknown  it  is  to  be  so  stated;  Com.  w.  Morse,  14  Mass.  217; 
Com.  V.  Manley,  12  Pick.  173;  1  Hale  512;  Wh.  C.  L.  71,403;  though  if  the  names  of  the 
owners  appear  on  the  trial  to  have  been  capable  of  ascertainment  at  the  finding  of  the  in- 
dictment, the  defendant  must  be  acquitted  ;  R.  v.  Walker,  3  Camp.  264  ;  R.  v.  Robenson, 
Holt.  C.  N.  P.  595. 

id)  Where  the  subject  of  the  larceny  is  live  cattle,  "steal,  take  and  lead  away,"  may 
be  Kubsliluled.     "Take,"  however,  is  essential;  2  Hale  184. 


LARCENV.  VJ'S 

Stealing  the  property  of  different  persons. 

Tliat  defendant,  on  &c.,  at,  &:c.,  one(6')  silver  watch  of  the  vahie 
of  forty  shilliui^s,  of  the  goods  and  chattels  of  E.  T.,  two  hats  of  the 
value  of  twenty  shillings,  and  two(/)  waistcoats  of  the  value  of  six 
shillings,  of  the  goods  and  chattels  of(^)  one  G.  H.,  then  and  there 
being  t'ound,  feloniously  did  steal,  take  and  carry  a\vay,(A)  against. 
&,c.  {Conclude  as  in  book  1,  chap.  3). 

Larceny  at  a  navy  yard  of  the  United  States. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  and  within  the  navy  yard  adjoin- 
ing the  City  of  Brooklyn,  in  the  County  of  Kings,  in  the  Southern 
District  of  New  York  aforesaid,  the  site  of  which  said  navy  yard  had 
been  before  the  said  day  of  in  the  year  last  aforesaid, 

ceded  to  the  said  United  States,  and  was  on  the  said  last  tnentioiied 
day,  then  and  there  under  the  sole  and  exclusive  jurisdiction  of  the 
said  United  States,  feloniously  did  take  and  carry  away  with  intent 
to  steal  and  purloin,  [state  definitely  the  thitigs  take?!,  and  the 
value  of  each  separately),  said  {a^  before),  then  and  there  being  tiie 
property  of  one  against,  &.C.,  and  against,  &c.     [Conclude  as 

in  book  1,  chap.  3). 

Second  count. 

{Like  first  count,  substituting) :  "tlien  and  there  being  of  the  per« 
sonal  goods  of  one  ,"  for  "then  and  there  the  property  of  one 

Third  could. 

[Like  second  count,  substituting) :  "  being  then  and  there  the  per- 
sonal goods  of  some  person  or  persons  to  the  said  jurors  unknown.-' 
for  "  then  and  there  being  of  the  personal  goods  of  one  ." 

{For  final  count,  see  arde,  p.  17,  97  n,  123  n). 

Larceny  on  the  high  seas. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c,,  in  and  on  board  of  a  certain 
American  vessel,  being  a  called  the  belonging  in  whole 

(e)  As  to  the  description  of  tlie  property  stolen,  its  value  and  ownership,  see  ante,  p.  191. 
Stark.  C.  P.  213.  The  owner  of  goods  stolen,  is  not  in  strictness  entitled  to  the  restitution 
of  any  which  are  not  specttiod  in  the  indictiiicnt ;  East  P.  C.  238.  If  a  thief  sell  tiie  goods 
the  prosecutor  is  entitled  to  the  money;   Hanberrio's  case,  Cro.  Eliz.  6(51;    1  Hale  542. 

(/)  Allhouirh  in  general,  the  value  of  each  different  individual  article  stolen,  should  be 
specified,  p.  I'JO,  2  Fiale  183,  yet  where  several  articles  of  property  of  the  samcnature  and 
kind  are  stolen  at  the  same  time,  as  several  sheep  or  handkerchiefs,  it  is  tlieooinrnon  prac- 
tice to  allege  llieir  value  cumulatively,  as  ten  handkerchiefs  of  the  value  of  twenty  shillings. 
And  unless  the  defendant  be  convicted  of  stealing  part  only,  no  uncertainty  can  arise,  but 
if  the  jury  find  that  he  stole  one  only, then  it  may  be  doubtful  whether  the  offence  be  grand 
or  petit  larceny,  since  they  were  not  alleged  to  bo  of  the  value  of  two  shillings  each,  bat  iii 
such  case  the  dirtieulty  might  perhaps  be  obviated  by  finding  the  value  spcci  illy. 

[cr)  Where  the  felonies  are  completely  distinct,  they  ought  not  to  be  joined  in  the  same 
indictment;  see  p.  12  ;  but  where  the  transaction  is  the  same,  as  where  the  property  of 
different  persons  is  taken  at  the  same  time,  there  seems  to  be  no  objection  to  the  joinder  j 

(A)  These  words  arc  essential,  ante,  p.  1;J2;  an  1,  in  an  indictment  of  this  nature,  it  is  un- 
ncccessary  further  to  specify  the  means  of  gaining  possession  of  the  property  ;  Stark.  C.  P. 
101  ;  Leach  273,  30."),  730. 

An  indictment  for  petit  larceny  differs  from   one  for  grand  larceny  in    no  other  respect 
than  in  laying  the  value  at  one  shiliiiig  or  under. 
17 


194  OFFENCES  AGAINST  PROPERTV. 

or  in  part  to  a  certain  person  or  persons,  then  and  still  being  a 
citizen  or  citizens  of  the  United  Stales  of  America,  whose  name  or 
names  are  to  the  said  jurors  unknown,  on  the  high  seas,  out  of  the 
jurisdiction  of  any  particular  state  of  the  said  United  States,  on  waters 
within  the  admiralty  and  maritime  jurisdiction  of  the  said  United 
States,  and  within  the  jurisdiction  of  this  court,  feloniously  did  take 
and  carry  away  {state  the  nature  of  the  things  taken,  their  particu- 
lar name  and  value),  with  intent  to  steal  or  purloin  the  same, 
against,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count. 

{Like  first  count,  inserting  after  the  specification  of  the  articles 
taken,  and  before):  "with  intent  to  steal  or  purloin  the  same,"  "of 
the  personal  goods  of  some  person  or  persons  to  the  said  jurors  un- 
known." 

Third  count. 

{Like  second  count,  siibstituting) :  •"  of  the  personal  goods  of  one 
^^  for  "of  the  personal  goods  of  some  person  or  persons  to  the 
said  jurors  unknown." 

{For  final  count,  see  ante,  p.  17,  97  n,  123  n). 

Larceny  on  the  high  seas.    Another  form. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  in  and  on  board  of  a  certain  ves- 
sel being  a  called  the  belonging  and  appertaining,  in 
whole  or  in  part,  to  a  certain  person  or  persons  then  and  still  being 
a  citizen  or  citizens  of  the  United  States  of  America,  whose  names 
are  to  the  said  jurors  unknown,  on  the  high  seas,  out  of  the  jurisdic- 
tion of  any  particular  state  of  the  said  United  States,  within  the  ad- 
miralty and  maritime  jurisdiction  of  the  said  United  States  of  Ame- 
rica, and  of  this  court,  feloniously  did  take  and  carry  away,  with 
intent  to  steal  and  purloin  (here  state  particularly  each  article,  and 
the  value  of  each  separately),  of  the  personal  goods  of  some  person 
or  persons  to  the  jurors  aforesaid  as  yet  unknown,  against,  &c.,  and 
against,  &c,     {Conclude  as  in  book  \,  chap.  3). 

Second  count. 

{Same  as  first  count,  substituting):  "belonging  and  appertaining 
in  whole  or  in  part  to  one  then  and  still  being  a  citizen  of  the 

United  States  of  America,"  for  "belonging  and  appertaining  in 
whole  or  in  part  to  a  certain  person  or  persons  then  and  still  being  a 
citizen  or  citizens  of  the  United  States  of  America,  whose  names  are 
to  the  said  jurors  unknown." 

Third  count. 

{Like  first  count,  substituting):  "of  the  personal  goods  of  one 
,"  for  "  of  the  personal  goods  of  some  person  or  persons  to 
the  jurors  aforesaid  as  yet  unknown." 

Fourth  count. 

{Like  second  count,  substituting) :  "  of  the  personal  goods  of  one 
,"  for  "  of  the  personal  goods  of  some  person  or  persons  to 
(he  jurors  aforesaid  as  yet  unknown." 

[For  final  count,  sec  ante,  p.  17,  97  n,  123  n). 


LARCEN'V.  195 

Larceny  in  an  American  ship  at  the  Bahama  islands. 

That,  &c.,  on  board  of  a  certain  vessel,  to  wit,  a  sloop,  called  the 
C.  W.,  then  and  there  belonging  to  S.  P.  W.,  J.  C.  B.  and  N.  F.,  citi- 
zens of  the  United  States,  while  lying  in  a  place,  to  wit,  Great  Har- 
bour in  Long  Island,  one  of  the  Bahama  islands,  within  the  jurisdiction 
of  a  certain  foreign  sovereign,  to  wit,  the  king  of  the  united  kingdom 
of  Great  Britain  and  Ireland,  a  certain  J.  P,  M.,  otherwise  called  J. 
M.,  otherwise  called  P.  M.,  late  of  the  district  aforesaid,  mariner, 
then  and  there  being  a  person  belonging  to  the  company  of  the  said 
vessel,  did  take  and  carry  away  with  an  intent  to  steal  and  purloin 
certain  personal  goods  of  the  said  S.  P.  W.,  to  wit,  one  quadrant  of 
the  value  of  twenty  dollars,  one  reflecting  semicircle  of  the  value  of 
twenty  dollars,  twenty-four  lunar  tables  of  the  value  of  twenty-four 
dollars,  one  shaving  box  and  glass  of  the  value  of  five  dollars,  one 
chart  of  the  value  of  one  dollar,  contrary,  &c.,  and  against,  &c.  {Con- 
chide  as  in  book  1,  chap.  3). 

Second  count.    Receiving,  SfC. 

That,  &c.,  on  board  of  a  certain  vessel,  to  wit,  a  sloop  called  the 
C.  W.,  then  and  there  belonging  to  S.  P.  W.,  J.  C.  B.  and  N.  F.,  citi- 
zens of  the  United  States,  while  lying  in  a  place,  to  wit.  Great  Har- 
bour in  Long  Island,  one  of  the  Bahama  islands,  within  the  jurisdic- 
tion of  a  certain  foreign  sovereign,  to  wit,  the  king  of  the  united 
kingdom  of  Great  Britain  and  Ireland,  the  said  J.  P.  M.,  otherwise 
called  J.  M.,  otherwise  called  P.  M.,  then  and  there  being  a  person 
belonging  to  the  company  of  the  said  vessel,  did  then  and  there 
receive  and  buy  certain  goods  and  chattels  that  had  been  feloniously 
taken  and  stolen  from  a  certain  other  person,  to  wit,  the  said  S.  P. 
W.,  at  the  district  aforesaid,  to  wit,  one  quadrant  of  the  value  of 
twenty  dollars,  one  reflecting  semicircle  of  the  value  of  twenty  dol- 
lars, twenty-four  lunar  tables  of  the  value  of  twenty-four  dollars,  one 
shaving  box  and  glass  of  the  value  of  five  dollars,  and  one  chart  of 
the  value  of  one  dollar,  he  the  said  J.  P.  M.,  otherwise  called  J.  M., 
otherwise  called  P.  M.,  then  and  there  knowing  the  same  to  be  stolen, 
contrary,  &c.,  and  against,  &c.    {Conclude  as  in  book  1,  chap.  3). 

{For  final  count,  see  ante,  p.  19,  97  n,  123  n). 

Larceny.     Form  in  use  in  JVeio  York. 

That  A.  B.,  &c.,  on,&c.,  at,  &,c.,  one  leathern  bucket  of  the  value 
of  three  dollars,  of  the  goods,  chattels  and  property  of  one  J.  B.,  then 
and  there  being  found,  feloniously  did  steal,  take  and  carry  away,  to 
the  great  damage  of  the  said  J.  B.,  against,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chajj.  3). 

Same  in  Pennsy?vania.{j) 
That  A.  M.,  late,  &c.,  on,  &c.,  one  mare  of  the  value  of  one  hun- 

(j)  Com.  V.  M'Mickle,  Sup.  Ct.  Pa.,  July  T.  182S,  No.  48.  This  case  went  up  to  the 
Supreme  Court,  after  conviction  in  the  Quarter  Sessions  of  Dclawurc  County,  apparent]  v 
for  the  purpose  of  testing  llie  proiiriety  of  joining  a  count  for  the  felony  of  larceny,  vvitli  a 


190  OFFE^CES  AGAIXST  PROPERTY. 

dred  dollars,  of  the  goods  and  chattels  and  property  of  J.  C,  then  and 
tiiere  being  found,  then  and  there  I'eloniously  did  steal,  take  and  carry 
away,  contrary,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Second  count.     Receiving  stolen  goods.  ' 

That  the  said  A.  M.,  on,  &c.,  at,  &c.,  the  goods  and  chattels  and 
property  aforesaid,  by  some  ill-disposed  persons  (to  the  jurors  afore- 
said yet  unknown),  then  lately  before  feloniously  stolen,  taken  and 
carried  away,  unlawfully,  unjustly  and  for  the  sake  of  wicked  gain, 
did  receive  and  have,  the  said  A.  M.  then  and  there  well  knowing 
the  goods  and  chattels,  moneys  and  property  last  mentioned,  to  have 
been  feloniously  stolen,  taken  and  carried  away,  contrary,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3)."  * 

Same  in  JVew  Jersey. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  one  hat  of  the  valne  of  one  dol- 
lar, then  and  there  being  found,  unlawfully  did  steal,  take  and  carry 
away,  contrary,  &c.,  and  against,  &.c.  {Conclude  as  in  book  1, 
ckap.  3). 

Same  in  Soidh  Carolina. 

That  A.  B.,  on,  &c.,at,  &c.,  one  woollen  jacket  of  the  value  of  two 
dollars,  of  the  proper  goods  and  chattels  of  J.  K.,  then  and  there  being 
found,  feloniously  did  steal,  take  and  carry  away,  against,  &c., 
{Conclude  as  in  book  1,  chap.  3.) 

Second  count. 

That  the  said  A.  B.,  on,  &c.,  at,  &c.,  one  other  woollen  jacket  of 
the  value  of  two  dollars,  of  the  goods  and  chattels  of  a  certain  person 
to  the  jurors  aforesaid  unknown,  then  and  there  being  found,  felo- 
niously did  steal,  take  and.  carry  away,  against,  &c.,  {Conclude  us 
in  book  1,  chap.  3). 

Same  in  Michi^cLn. 

That  J.  K.,  (Src,  on,  &c.,  at,  &c.,  one  gelding  of  the  value  of  one 
hundred  and  twenty-five  dollars,  of  the  goods  and  chattels  of  one  J. 
B,,  then  and  there  being,  feloniously  did  steal,  take  and  lead  away; 
against,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Bank  note  in  JVorlh  Carolina.{k) 

That  T,  B.,  &c.,  on,  &c.,  at,  &c.,  one  twenty  dollar  bank  note  on 
the  State  Batdi  of  North  Carolina, (/)  of  the  value  of  twenty  dollars, 
of  the  goods  and  chattels,  moneys  and  property  of  A.  B.,  then  and 

count  for  llie  iriLsdcnicanor  of  rcccivinjr  stolen  fjoods.  Tlio  judg^mt-nt  on  iho  verdict  vvns 
fustaincd.  Tlic  forin  in  the  text  is  the  one  ordinnrily  used  in  j)racticc  in  Pennsylvaniii. 
See  also  Com.  v.  Vandyke,  March  Term,  182H,  No.  32,  wl)cre  tlie  same  point  was  ruled. 

{k)  This  form  seems  required  by  the  court;  State  i;.  Rout,  3  Hawks  618. 

(')  Or  in  another  case,  "  a  ceitain  twenty  dollar  hank  note,  issued  hy  the  President  and 
Directors  of  the  Bunk  of  Newbern;"  Stale  v.  Williamson,  3  Mtiiph.^fC. 


LARCENY.  l'^7 

there  being  found,  then  and  there  feloniously  did  steal,  take  and  carry 
away,  contrary,  &.C.,  and  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 

Bank  note  in  Pennsylvania.{m) 

That  T.  B.,  &c.,  on,  &c.,  at,  &c.,  one  promissory  note  for  the  pay- 
ment of  money,  commonly  called  a  bank  note,  purporting  to  be  issued 
by  the  {president  and  directoi-s  of  the  bank  of,  &c.,  as  the  case  may 
be),  for  the  payment  of  five  dollars,  being  still  due  and  unpaid,  of  the 
value  of  five  dollars  of  the  goods  and  chattels,  moneys  and  property 
of  A.  B.  then  and  there  being  found,  then  and  there  feloniously  did 
steal,  take  and  carry  away,  contrary,  &c.,  and  against,  &c.  (Con- 
clude as  in  book  1,  chap.  3). 

Bank  note  in  Connecticut.{n) 

That  T.  B.,  &c.,  on,  &c.,  at,  &c.,  thirteen  bills  against  the  Hartford 
Bank,  each  for  the  payment  and  of  the  value  of  ten  dollars,  issued  by 
such  bank,  being  an  incorporated  bank  in  this  state,  of  the  value  of 
one  hundred  and  thirty  dollars,  of  the  goods  and  chattels,  moneys  and 
property  of  A.  B.  then  and  there  being  found,  then  and  there  felo- 
niously did  steal,  take  and  carry  away,  contrary,  &c.,  and  against,  &c. 
(Conclude  as  in  book  1,  chajj.  3). 

Bank  note  in  Tennessee.{o) 

That  defendant  on,  &c.,  at,  &c.,  one  bank  note  of  the  Planters' 
Bank  of  Temiessee,  payable  on  demand  at  the  Mechanics'  and  Tra- 
ders' Bank  at  New  Orleans,  of  the  value  and  denomination  of  five 
dollars,  the  bank  note,  personal  goods  and  chattels  of  J.  B.,  then  and 
there  being,  feloniously  did  steal,  take  and  carry  away,  against, 
&c.,  and  against,  &,c.     (Conclude  as  in  book  1,  chap.  3). 

An  account  book  in  J\lassachusetfs.(p) 

That  defendant,  at,  &c.,  on,  &c.,  one  certain  original  book  of  ac- 
counts concerning  money  due,  of  the  value  of  twenty  dollars,  one 
receipt,  release  of  defeasance,  containing  an  acquittance  of  money 
due,  of  the  value  of  six  dollars,  and  sundry  bank  bills,  amounting  to- 
gether to  the  sum  of  eleven  dollars,  and  of  the  value  of  eleven  dol- 
lars, of  the  goods  and  chattels  of  one  A.  B.,  in  the  dwelling  house  of 

(m)  This  form  is  the  one  usually  employed,  and  is  in  conformity  with  the  views  of  the 
Supreme  Court;  M'Laucrhlin  v.  Com.,  4  R.  464;  Com.  v.  M'Dowell,  1  Browne  359; 
Stewart  o.  Com.,  4  S.  &,  R.  194;  Span^ler  v.  Com.,  3  Binn.  533. 

(n)  Tins  form  was  sanctioned  in  Salisbury  v.  State,  6  Conn.  101. 

(o)  State  V.  Hile,  9  Yerg.  358. 

(/>)  Com.  V.  VVilliam.s,  9  Met.  273.  In  this  case  it  was  held,  that  a  memoranduTi  book, 
kept  by  a  person  who  works  for  a  tailor  by  the  piece  and  in  which  entries  are  made  of  the 
names  of  tlie  persons  owning'  the  garments  worked  upon,  and  the  prices  of  the  work,  is  a 
"book  of  accounts  for  or  concerning  money  or  goods  due,  or  to  become  due,  or  to  be 
delivered,"  witliin  the  Revised  Statutes,  c.  1"26,  s.  17,  and  is  the  subject  of  larceny.  And 
such  book,  given  by  a  tailor  to  the  person  who  works  for  him,  for  the  purpose  of  such  en- 
tries being  made  therein,  is  t!ic  property  of  such  person,  and  not  the  tailor. 

17^ 


lOS  OfFF.VCF.S  AGAINST  PROPKRTY. 

one  C.  D.  there  situate,  in  her  the  said  A.  B.'s  possession  then  and 
tliere  beina;,  did  then  and  there,  in  said  dweUing  Iiouse,  in  the  day 
time,  feloniously  steal,  take  and  carry  away. 

Breakivg  and  entering  a  vessel  in  the  night  time  and  committing  a  lar- 
ceny tlierein^  under  the  Massachusetts  Revised  Statutes.{fj) 

That  C.  D.,  &c.,  on,  &c.,  at,  &c.,  a  certain  vessel  of  one  A.  B.,  call- 
ed the  Sally  of  Boston,  within  the  body  of  the  said  county  of  S.,  then 
and  there  lying  and  being,  in  the  night  time,  did  break  and  enter, 
and  one  trunk  of  the  value  of  five  dollars,  and  {here  state  the  kind 
and  value  of  each  article),  of  the  goods  and  chattels  of  one  E.  F.,  in 
the  trinik  atoresaid  then  and  there  contained,  and  in  the  vessel  afore- 
said then  and  there  being  found,  feloniously  did  steal,  take  and  carry 
away  in  the  vessel  aforesaid,  against,  &c.,  and  contrary,  &c.  {Co?i- 
clude  as  in  book  1,  chap.  3). 

Breaking  and  entering  into  a  direlling  house  in  the  daij  time,  not  being 
armed,  S^c,  under  the  Massachusetts  Revised  Statutes.[r) 

That   A.   B.,  &c.,  on,  &c.,  at,   &c.,  the  of  one  there 

situate,  in  the  time  of  said  day,  did  break  and  enter  with  intent 

tiien  and  therein  to  commit  the  crime  of  larceny  by  then  and  there 
feloniously  stealing,  taking  and  carrying  away  the  goods,  chattels  and 
jjersonal  property  of  the  said  therein  then  and  there  foimd,  the 

said  then  and  there  not  being  armed,  nor  arming  himself  in  said 

with  a  dangerous  weapon,  nor  making  any  assault  upon  any 
person  then  being  lawfully  therein,  the  owner,  nor  any  other  person 
lawfully  therein  not  being  put  in  fear,  against,  &c.,  and  contrary,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Breaking  and  entering  a  shop  in  the  night  and  committing  a  larceny 
therein,  on  the  fourth  section  of  the  statute,  (s) 

That  C.  D.,  &c.,  on,  &c.,  at,  &:c.,  the  shop  of  one  A.  B.,  there 
situate,  (!iot  adjoining  to,  and  occupied  with  a  dwelling  house),  in 
the  night  time  did  break  and  enter,  and  sundry  bank  bills,  amount- 
ing together  to  the  sum  of  one  iumdrcd  dollars,  and  of  tiie  value  of 
one  hundred  dollars,  and  {here  insert  all  the  articles  stolen,  alleging 
the  kind,  number  and  value  of  each),  of  the  goods  and  chattels  of 
the  said  A.  B.,  then  and  there  in  the  shop  aforesaid  being  found, 
feloniously  did  steal,  take  and  carry  away  in  the  shop  aforesaid, 
against,  &c.     {^Conclude  as  in  book  1,  chap.  3). 


(q)  Davis'  Prcc.  113. 

(r)  This  \»  the  form  in  use  in  the  County  of  Suffolk. 

(«)  See  Davis'  Prcc.  142.  The  conphiig  in  tiiia  form  of  the  "breaking-  nnd  entering" 
with  the  larceny,  is  not  dnplicity;  Coin.  v.  Tuck,  20  Pick.  .3.^0.  It  was  first  held  csscn- 
lial,  however,  tliat  the  averment  in  1, rackets,  which  was  nmittcrl  by  Mr.  Davis,  should  be 
iii»crl<-d,  i\). ;  but  tin:  court  since  appears  to  liave  settled  into  a  contrary  doctrine  ;  Dcvoe  r. 
<'»nn.,  3  Met.  .'{)(;;  Phillips  «.  Com.,  ib.  .'JSH.  'Phis  indictment,  it  is  intimated  in  the  latter 
e^c,  would  be  good  uuder  Revised  Statutes,  c.  12(3,  s.  II. 


LARCENY.  199 

For  coTmvillivfr  a  Jarcemj  in  the  day  time  in  a  direlling  house,  on  the 
sixth  section  of  the  statute. {t) 

That  C.  D.,  &c.,  on,  &c.,  at,  &.c.,  two  slieets  of  the  value  of  six  dol- 
lars, one  surtout  coat  of  the  value  of  ten  dollars,  and  one  hat  of  the 
value  of  five  dollars,  of  the  goods  and  chattels  of  one  A.  B.,  then  and 
there  in  the  dwellitig  house  of  him  the  said  A.  B.{ii)  being  found, 
i'eloniously  did  steal,  take  and  carry  away  in  tlie  dwelling  house 
aforesaid,  against,  &c.     [Conclude  as  in  hook  1,  chap.  3). 

Larcevij  and  cmhe—lement  of  'public  properti/,  on  the  statute  of  the 
United  States  of  the  SOth  April,  1790,  s.  26. (?r) 

That  A.  B.,  &:c.,  on,  &c.,  at,  &c.,  being  a  person  having  the  charge 
and  custody  of  certain  arms  and  other  ordnance  and  munitions  of 
war  belonging  to  the  United  States,  certain  arms,  to  wit,  ten  mus- 
kets,(a:)  of  the  value  of  one  hundred  dollars,  of  the  property,  goods 
and  chattels  of  the  said  United  States,  in  the  charge  and  custody  of 
the  said  A.  B.  then  and  there  being,  wittingly,  advisedly  and  of  pur- 
pose to  hinder  and  impede  the  service  of  the  said  United  States,  and 
lor  lucre  and  gain,  did  embezzle,  steal, (y)  purloin  and  convey  away, 
against,  &c.,  and  contrary,  &c.     {Conclude  as  in  hook  1,  chap.  3). 

Against  an  assistant  postmaster  for  stealing  money  trhich  came  into  his 
hands  as  assistant  postmaster,  on  the  act  of  3d  March,  1825,  s.  21.(2) 
See  Gordon's  Digest,  art.  3G11,  p.  704. 

That  A.  M.,  &c.,  on,  &c.,  at,  &c.,  he  the  said  A.  M.  being  then 
and  there  a  person  employed  in  one  of  the  departments  of  the  post- 
office  establishment  of  the  United  States  of  America,  to  wit,  as  an 
assistant  of  the  deputy  postmaster  of  the  post-office,  legally  established 
and  appointed  by  the  postmaster-general  of  the  United  States,  within 
the  said  town  of  Granby,  feloniously  did  steal,  take  and  carry  away 
sundry  bank  notes,  amounting  together  to  the  sum  of  two  hundred 
and  seventy  dollars,  and  of  the  value  of  two  hundred  and  seventy 
dollars,  of  the  goods,  chattels  and  property  of  one  N.  P.  and  one  A. 
M.;  which  said  bank  notes  were  then  and  there  feloniously  taken  and 
stolen  as  aforesaid  by  the  said  A.  M.  out  of  a  certain  letter,  which 

(0  Davis'  Free.  143. 

Similar  forms  arc  to  be  adopted  for  breaking'  and  entering  in  the  day  time  tlie  other 
Imildinys,  ships  or  vessels,  mentioned  in  this  section,  following  the  description  of  the  build- 
ings or  vessels  ;is  in  the  st^itute. 

(»/)  If  the  goods  stolen  belong  to  one  person,  and  the  dwelling  house  in  which  they  arc 
stolen  belongs  to  another  person,  it  must  be  so  alleged  in  the  indictment.  The  same  form 
as  the  last  is  to  be  adopted  for  larcenies  in  tlie  otiier  tniildings,  ships  or  vessels  mentioned 
in  this  section,  the  allegation  in  the  indictment  being  made  conformable  to  the  fact.    Ih. 

(jc)  Davis'  I'rec.  149.   Gordon's  Digest,  art.  3641,  j).  714.   Sec /)os^  "Embezzlement." 

(x)  The  same  form  is  to  be  adopted  as  to  all  the  other  ailiclcs  and  property  enumerated 
in  the  statute. 

(»/)  This  section  of  the  statute  is  drawn  in  a  very  incorrect  manner.  The  word  pur- 
loin is  used  in  the  f<)rmcr  part  of  it,  and  the  word  stolen  in  the  latter  part  for  the  same 
purpose.  • 

(z)  This  indictment  is  given  by  Mr.  Davis  in  his  Precedents,  p.  149,  and  was  drawn  hv 
Professor  Ashmun  of  tlie  law  scliool  in  Cambridge.  Tlie  case  was  twice  tried  without 
obtaining  a  verdict. 


200  OFFENXES  AGAINST  PROPERTY. 

came  to  the  hands  and  possession  of  him  the  said  A.  M.  in  his  said 
capacity  and  employment  as  such  assistant  postmaster  as  aforesaid, 
against,  &.C.,  and  contrary,  &.c.     [Conclude  as  in  book  1,  chap.  3). 

Larceny  of  a  slave  in  Missouri. (zz) 

That  J.  K.,  on,  &.C.,  at,  &c.,  one  negro  boy,  slave  for  Hfe,  named  J., 
aged  about  twenty  years,  did  steal,  take  and  carry  away,  contrary, 
&:c.,  and  against,  &.c.     {Conclude  as  in  book  1,  chap.  3). 

Same  in  Alabama.{a) 

That  defendants  did  unlawfully  and  feloniously  inveigle,  steal, 
carry  and  entice  away  two  negro  slaves,  the  property  of  F.  M.  B  , 
with  a  view,  then  and  there,  feloniously  and  unlawfully  to  convert 
the  said  slaves  to  the  use  of  them  the  said  H.  B.,  J.  M'K,  and  J. 
alias  J.  M.(6) 

Same  in  Korth  CaroUna.{c) 

That  J.  C.  H.,  &c.,  on,  &c.,  at,  &c.,  one  negro  man,  slave,  by  the 
name  of  E.,  then  and  there  being  the  property  of  N.  D.,  of  the  value 
of  fifty  dollars,  feloniously  did  steal,  take  and  carry,  contrary,  &c., 
and  against,  &.c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count.  Seducing  a  slave  with  intent  to  sell,  under  the  North 
Carolina  act  of  1779. 

That  the  said  J.  C.  H.,  &c.,  on,  &c.,  at,  &c.,  one  other  man  slave 
named  E.,  then  and  there  being  the  property  of,  &c.,  and  then  and 
there  in  the  possession  of,  &c.,  feloniously  by  seduction,  violence  and 
other  means,  him  the  said  man  E.,  slave  as  aforesaid,  against  the 
will  and  consent  of  her,  &c.,  did  take  and  convey  away  from  the  pos- 
session of  her  the  said  owner,  with  an  intention  the  said  slave  to  sell, 
dispose  of  and  convert  to  his  own  use,  contrary,  &C.5  and  against, 
&c.     {Conclude  as  in  book  1,  chap.  3). 

{zz)  Kirk  v.  State,  6  Mo.  471. 

(a)  State  v.  Mooney,  8  Ala.  32S.  Upon  tliis  indictment  it  was  held  that  tlie  woids  in- 
veigle, entice,  steal  and  carry  away  in  tiie  penal  code,  (Clay's  Dig.  419,  s.  18),  denote 
otFcnces  of  precisely  the  same  grade,  and  may  be  inclnded  in  the  same  count  of  the  indict- 
ment; and  that  upon  proving  either,  the  state  was  entitled  to  a  conviction. 

The  offence  of  inveigling  or  enticing  away  a  slave,  is  consummated,  it  was  said,  when 
tlie  slave,  hy  promises  or  persuasions,  is  induced  to  quit  his  master's  service,  with  intent 
to  escape  from  bondage  as  a  slave,  whether  the  person  so  operating  on  the  mind  and  will 
of  the  slave,  is,  or  is  not  |)resent  when  the  determination  to  escape  is  manifested  by  the 
act  of  leaving  the  master's  service,  or  whether  he  is  or  is  not  sufficiently  near  to  aid  in 
the  escape  if  necessary. 

{}))  The  prisoner  demurred  to  the  indictment,  and  Iiis  demurrer  being  overruled, 
f)lcaded  not  guilty. 

(c)  State  V.  Ilancy,  2  Dcv.  &  Bat.  390.  "An  indictment,"  it  was  ruled  in  this  ca^c, 
"under  the  act  of  1779,  (liev.  c.  1 12),  which  charges  the  seduction  of  a  slave  to  be  with 
an  iiitent  'to  sell,  dispose  of  and  to  convert  to  his  own  use,'  is  sufficient.  For  tlie  felony 
created  by  the  act,  is  sufficiently  described  by  charging  the  seduction  to  be  with  an  intent 
'to  sell;'  and  the  words,  'dispose  of  and  appropriate  to  his  own  use,'  do  not  extend  the 
intention  inipuled,  beyond  that  of  an  intention  to  sell,  and  at  the  worst,  are  only  redund- 
ant. And  charging  the  taking  to  be  '  by  violence,  seduction  and  other  means,'  is  not  re- 
jiugnunt,  as  both  vifdcnce  and  seduction  may  have  been  used;  but  if  it  were  double,  it  is 
aided  by  a  verdict  finding  the  taking  to  be  by  a  seduction  %nly.  The  words  'other 
means,'  if  used  alone  would  be  too  indefinite;  but  taken  in  connexion  with  the  other 
words,  '  by  viohmcc  and  seduetlon,'  they  are  metcly  superfluous."  A  count  on  the  aet  of 
1779,  lijr  the  seduction  of  a  slave,  need  not  charge  liiiii  to  be  of  any  value. 


RECEIVIN'G  STOLEN'  GOODS.  201 


CHAPTER  VI. 


RECEIVING    STOLEN    GOODS, 


General  frame  of  indictment.{a) 

That  A.  B.,  in  the  county  aforesaid,  one  silver  tankard  of  the 
value  of  two  pounds,  of  the  goods  and  chatteis(6)  of  one  J.  M.,  before 
then  feloniously  stolen,(c)  taken  and  carried  away,  (feloniously)(^/) 
did  receive  and  have,  (he  the  said  A.  B.  then  and  tliere  well  know- 
ing the  said  goods  and  chattels  to  have  been  feloniously  stolen,  taken 
and  carried  away),  against,  &.c,,  and.  against,  etc.  {Conclude  as  in 
book  1,  chap.  3). 

{For  form  in  U.  S.  courts,  see  ante,  p.  195). 

Receiving  goods  stolen  hy  a  slave. (e) 

That  a  certain  negro  A.,  the  slave  of  S.  C,  late  of  Philadelphia 
County,  spinster,  the'tenth  day  of  May,  A.  D.  1769,  at  the  county 
aforesaid,  and  within  the  jurisdiction  of  this  court,  with  force  and 
arms,  had  feloniously  stolen,  taken  and  carried  away,  one  black  vel- 
vet cloak  of  the  value  of  forty  shillings,  of  the  goods  and  chattels  of 
the  said  S.  C,  against,  &c.     And  thai  M.  M.,  late  of  Philadelphia 

{a)  Thi»  offence,  so  far  as  it  may  be  considered  as  a  corollary  of  larceny,  is  treated  of 
in  chapter  v.,  ante.  The  form  in  the  text,  with  the  accompanying  notes,  though  based  on 
the  Englisli  statute,  is  useful  for  reference  generally  ;  that  statute  having  been  substantially 
re-enacted  throughout  the  union. 

(6)  A  variance  in  this  particular  will  be  fatal ;  People  v.  Wiley,  3  Hill  N.  Y.  R.  194. 
If,  liowever,  as  in  larceny,  the  crime  be  established  in  res[)ect  to  only  a  single  article, 
tliough  the  indictment  describe  several,  the  defendant  may  be  convicted.  Thus  where,  on 
tlic  trial  of  an  indictment  which  mis-described  a  part  of  the  goods,  but  contained  a  suffi- 
cient description  of  the  residue,  the  jury  were  instructed  by  tiie  court  below,  that  there 
was  no  mis-description  whatever,  and  a  general  verdict  of  guilty  was  rendered.  It  was 
held  on  review  that  the  erroneous  instruction  constituted  no  ground  for  a  new  trial,  inas- 
much as  it  appeared  by  the  bill  of  exceptions  that  the  question  of  the  defendant's  guilt 
was  identical  in  respect  to  the  whole  of  the  goods,  he  having  received  them,  if  at  all,  from 
the  same  person  by  a  single  act;  People  ».  Wiley,  3  Hill  N.  Y.  R.  194. 

When  the  indictment  states  the  larceny  to  have  been  committed  by  some  persons  to  the 
jurors  unknown,  it  is  no  objeclion  that  the  grand  jury  at  the  same  assizes  find  a  bill  for 
the  principal  felony,  against  J.  S. ;  R.  v.  Bush,  R.  &.  R.  372. 

(c)  An  indictment  under  the  Tennessee  statute,  against  receiving  property  knowing  the 
same  to  be  stolen,  need  not  give  the  name  of  the  principal  felon  ;  S\va<rgerty  v.  State,  9 
Yerg.  338;  and  the  same  rule  exists  in  England  ;  Rex  v.  Jervis,  6  ('.  &  P.  156.  It  is  not 
essential  in  such  case,  to  aver  that  the  princii)al  felon  or  thief  had  been  convicted;  ib.  An 
indictment  charging  that  a  certain  evil  disposed  person  feloniously  stole  certain  goods, 
and  that  C.  D.  and  E.  F.  feloniously  received  the  said  goods  knowing  them  to  be  stolen, 
was  holden  good  against  the  receivers,  as  for  a  substantive  felony  ;  R.  v.  Caspar,  2  Mood. 
C.  C.  101 ;  9  C.  &  P.  289. 

The  time  and  place,  when  and  where  the  goods  were  stolen,  need  not  be  stated  in  the 
indictment;  State  v.  Holford,  2  Blackf  103;  1  Leach  109,  477. 

(d)  Of  course  where  the  offence  is  a  misdemeanor,  as  in  Pennsylvania,  the  word  "fclo- 
niously"  must  be  omitted. 

(<•)  Drawn  hy  Mr.  Chew  in  1769,  attorney  general  of  Pennsylvania,  and  sustained  ac- 
cording to  Mr.  Bradford's  memoranda,  by  the  provincial  Supreme  Court. 


202  OFFEXCES  AGAINST  PROPERTY. 

County,  and  well  knowing  that  the  said  negro  A.,  the  felony  afore- 
said, in  form  aforesaid  had  committed,  afterwards,  to  wit,  on  the 
eleventh  day  of  May,  in  the  same  year  aforesaid,  at  the  county  afore- 
said, and  within  the  jurisdiction  of  this  court,  with  force  and  arms, 
&c,,  the  black  velvet  cloak  aforesaid  of  the  value  of  forty  shillings, 
feloniously  of  and  from  the  said  negro  A.  did  take  and  receive,  against, 
(Sec.     (Conclude  as  i)i  book  1,  chap.  3). 

Fo7-?7i  in  use  in  Massachusetts  against  receiver  of  stolen  goods. 

That  A,  T.,  &c.,  on,  &c.,  at,  &c.,  one  hat  of  the  value  of  five  dol- 
lars of  the  goods  and  chattels  of  C.  D.  then  and  there  in  the  possession 
of  the  said  C.  D.  being  found,  feloniously  did  steal,  take  and  carry 
away,  against,  &c.,  and  contrary,  &e.  {Conclude  as  in  book  1,  chap.  3). 

Second  count. 

That  T.  A.,  on,  &c.,  at,  &c.,  did  abet  and  maintain  him  the  said  A. 
T.  in  committing  and  perpetrating  the  said  felony  and  theft,  and  there, 
after  the  said  goods  and  chattels  were  stolen,  as  aforesaid,  knowingly 
did  receive  all  the  same  goods  and  chattels  of  him  the  said  A.  T., 
knowing  the  same  to  have  been  stolen,  taken  and  carried  away  as 
aforesaid,  against,  &c.(/)    [Conclude  as  in  book  1,  chap.  3). 

Same  in  JVew  York. 

That  0.  M.  II.,  &.C.,  at,  &c.,  on,  &c.,  one  mare  of  the  value  of  eighty 
dollars,  of  the  goods  and  chattels  of  one  B.  M.  by  a  certain  ill-dis- 
posed person,  feloniously  did  receive  and  have,  he  the  said  0.  M.  H. 
then  and  there  well  knowing  the  said  goods  and  chattels  to  have  been 
feloniously  stolen,  taken,  carried  and  led  away,  to  the  great  dam- 
age, &c.(^)     [Conclude  as  in  book  1,  chap.  3). 

Same  in  Pennsylvania, 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  one  hat  of  the  value  of  five  dollars, 
of  the  goods  and  chattels,  moneys  and  property  of  E.  F.,  by  C.  D. 
then  lately  before  feloniously  stolen,  taken  and  carried  away,  un- 
lawfully, unjustly  and  for  the  sake  of  wicked  gain  did  receive  and 

(/)  This  form  is  copied  from  the  indictment  in  Com.  v.  Andrews,  2  Mass.  14.  The 
goods  hajipencd  to  have  been  stolen  in  New  Hamjishire,  and  tiicn  to  have  been  brought  to 
Massacliusclts,  where  the  receiving  took  place.  Tiie  only  ground  on  wiiich  the  conviction 
could  be  Bup[)ortcd  was  that  the  carrying  tiie  goods  into  IVla>;sacliusetts  was  one  continu- 
ous larceny  ;  and  that  the  retention  of  possession  when  intlie  latter  state,  by  being  tacked 
on  to  the  assumption  of  it  in  New  Flairipshiro,  was  injected  with  the  original  felony.  The 
conviction  was  su()porte(i  l)y  Mr.  Sullivan,  the  attorney-general,  solely  on  this  reasoning  ;  and 
was  attacked  by  .Mr.  (Jtis  with  great  vivacity  and  tbree,  on  tlie  ground  that  the  doctrine 
of  asportation  could  not  be  ap|)lied  to  sovereign  states.  The  court  sustained  the  verdict,  and 
its  course  was  ioilow<(l  in  C'oniiectient ;  State  v.  Kills,  .3  ('onn.  185;  Vermont,  State  v. 
IJartlett,  11  Venn.  O.'iO  ;  Maryland,  Cuniniins  v.  State,  1  Mar.  &,  J.  340;  and  North 
(-'.irolina,  State  ».  Hrown,  1  flay.  100.  in  Fenn.sylvania  the  rule  is  the  contrary;  Sim- 
mons  r.  Corn.,  5  Kinn.  G18;  and  so  it  was  in  New  York  before  the  revised  statutes  adopt- 
ed the  rules  a.s  laid  down  in  Massachusetts.  This,  and  the  (piestion,  how  far  a  conviction  iti 
one  Htateinak{!s  a  witness  infamous  in  another,  are  the  chief  jjoints  in  which  the  peculi- 
arities of  the  ti'dera!  system  enter  into  the  criminal  law  of  the  union. 

( t:j  Hojikins  B.  Teople,  12  Wend.  7f).  It  is  n(jt  neccsssary  to  allege  that  any  considera- 
tion puased  between  the  receiver  and  Uie  thief. 


RECEIVING  STOLE.V  GOODS.  203 

have  (the  said  A.  B.  then  and  there  well  knowing  the  goods  and 
chattels,  moneys  and  property  aforesaid,  to  have  been  feloniously 
stolen,  taken  and  carried  away),  contrary,  &c.,and  against,  &,c.  {Coti- 
ciude  as  in  book  1,  chap.  3). 

Receiving  stolen  goods  from  some  unknown  person,  in  Pennsylvania,  (h) 

That  M.  J.,  late  of  the  said  county,  spinster,  being  a  person  of  evil 
name  and  fame  and  of  dishonest  conversation,  and  a  common  buyer 
and  receiver  of  stolen  goods,  on,  &c.,  at,  &c.,  one  hundred  yards  of 
fine  thread  lace  of  the  value  of  twenty-five  pounds,  of  the  goods  and 
chattels  of  J.  S,  by  a  certain  ill-disposed  person  to  the  jurors  aforesaid 
yet  unknown,  then  lately  before  feloniously  stolen  of  the  same  ill- 
disposed  person,  unlawfully,  unjustly  and  for  the  sake  of  wicked  gain, 
did  receive  and  have,  she  the  said  M.  J,  then  and  there  well  knowing 
the  said  goods  and  chattels  to  have  been  feloniously  stolen,  to  the 
great  damage  of  the  said  J.  S.,  contrary,  &c.,  and  against,  &c.  {Con- 
clude  as  in  book  1,  chap.  3). 

Same  in  South  Carolina. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  one  tin  kettle  of  the  value  of  one  dol- 
lar, of  the  proper  goods  and  chattels  ofE.  F.,  by  C.  D.  then  lately  be- 
fore feloniously  stolen,  taken  and  carried  away,  of  and  from  the  said 
C.  D.,  unlawfully,  unjustly  and  for  the  sake  of  wicked  gain,  did  buy 
and  receive,  the  said  A.  B.  then  and  there  well  knowing  the  aforesaid 
goods  and  chattels  to  have  been  feloniously  stolen,  taken  and  carried 
away;  against,  &c.,  and  against,  &c.  {Conclude  as  in  book  1. 
chap.  3). 

Second  count. 

That  the  said  A.  B.  on,  &c.,  at,  &c.,  one  other  tin  kettle  of  the  value 
of  one  dollar,  of  the  proper  goods  and  chattels  of  the  said  E.  F.  by  a 
certain  evil-disposed  person,  to  the  jurors  aforesaid  unknown,  then 
lately  before  feloniously  stolen,  taken  and  carried  away,  of  and  from 
the  said  evil-disposed  person,  unlawfully,  unjustly  and  for  the  sake  ol 
wicked  gain,  did  buy  and  receive,  the  said  A.  B.  then  and  there  well 
knowing  the  aforesaid  goods  and  chattels  to  have  been  feloniously 
stolen,  taken  and  carried  away  j  against,  &.C.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chaj).  3). 

Same  in  Tennessee.{i) 

That  S.  D.  S.,  &c.,  on,  &:c.,  at,  &c.,  two  sides  of  upper  leather,  of  the 
value  of  five  dollars,  of  the  goods  and  chattels  of  one  j\I.  H.  B.,  then 
lately  before  feloniously  and  fraudulently  stolen,  did  then  and  there 
receive  and  have,  he  the  said  S.  then  and  there  well  knowing  the  said 
goods  and  chattels  to  have  been  feloniously  and  fraudulently  stolen, 
taken  and  carried  away,  with  intent  to  deprive  the  true  owner  there- 
oi,{j)  contrary,  &,c.,  against,  &c.      {Conclude  as  in  book  1,  chap.  5). 

(A)  Drawn  by  Win.  Bradford  Esq.,  at  the  time  attorncy-g-encral  of  the  ccmnionwealth. 
(»)  This  form  was  held  good  in  Swapgerty  v.  State,  9  Yf  rg.  335. 
(j)  This  allegation  is  vital ;  Hiirell  t.  Stale,  5  Ilumpli.  68. 


204  OFFF.NCES  AGAINST  PROPERTY. 

So!icili)ig  a  servant  to  steal,  and  reccivivg  the  stolen  goods.{h) 

That  E.  D.,  &:c.,  on,&.c.,  at,  &c.,  falsely,  siibtilly  and  unlawfully  did 
solicit,  entice  and  persuade  one  M.  P.,  servant  of  W.  S.,  of  the  same 
county,  yeoman,  secretly  and  clandestinely  to  take  and  embezzle 
divers  goods  and  chattels  of  the  said  W.  S.,  and  to  give  and  deliver 
such  goods  and  chattels  to  her  the  said  E.,  and  that  the  said  E.  after- 
wards, the  said  third  day  of  May,  in  the  year  aforesaid,  at  tlie  county 
aforesaid,  two  pounds  of  coffee,  one  quarter  of  a  pound  of  candles, 
one  pound  of  soap,  ten  pounds  of  flour,  one  pound  of  bread,  half  a 
])int  of  rum,  of  the  value  of  six  shiUings  and  six  pence,  lawful  money 
of  Pennsylvania,  of  the  goods  and  chattels  of  the  said  W.  S.  by  the 
said  M.,  then  lately  before  on  the  same  day  and  year  above  men- 
tioned, by  the  solicitation,  incitement  and  persuasion  of  the  said  E., 
taken  and  embezzled,  then  and  there  falsely,  knowingly,  subtilly  and 
unlawfully  did  receive,  obtain  and  have,  of  and  from  the  said  M.,  to 
the  great  damage  of  the  same  W.  S.,  to  the  evil  example  of  all  others 
in  the  like  case  offending,  and  against,  &c.  (Conclude  as  in  book  1, 
chap.  3). 


CHAPTER  VII. 

EMBEZZLKMENT.(a) 

Against  officer  of  the  U.  S.  mint,  for  embezzling  money  entrusted  to  him. 

That  R.  II.,  &.C.,  on,  &c.,  at,  &c.,  then  and  there  being  an  officer 
of  tlic  United  States  *  charged  with  the  sale-keeping,  transfer  and  dis- 
bursement of  public  inoneys,  uulawlully  and  feloniously  did  convert 
to  his  own  use,  and  embezzle  a  portion  of  the  said  public  moneys 
entrusted  to  him  the  said  R.  II.  for  safe-keeping,  transfer  and  dis- 
bursement, to  wit,  t  the  following  coins  of  gold  which  had  been  struck 
and  coined  at  the  mint  of  the  United  States  [slating  the  coins),  alto- 
gether of  the  value  of  twenty-three  thousand  two  hundred  and  thirty- 
eight  dollars  and  sixty-one  cents,  the  said  coins  of  gold  and  the  said 

(kj  Sec  Index,  lit.  "AttcmptK  to  Coiiirnil  Ollijnccs." 

'a)  (Emhfzxlenient  nl  cuminon  law).  In  jfencrul  an  indictment  for  a  mere  breach  of 
tiusl,  not  iunountinjr  to  larceny,  will  not  lie  at  common  law.  But  where  this  lueiich  of 
tinst  is  Cf.mmillcd  hy  a  [)iit)lic  oliiccr  iiiisapiiiyiiifr  the  funds  with  which  he  is  entrusted 
for  the  heii'fit  of  the  |)iiblic,  he  may  be  indicted  for  a  misdemeanor  in  respect  of  his  pub- 
lic duty.  'I'hiiH  un  indictment  will  lie  at  common  law  ayainst  overseers  for  embezzlement, 
givinjj  false  accounts,  or  not  jiccountinfr  (see  forms  in  3  Chit.  C  L.  7U1,  et  scq.),  and 
uf,'ainsl  Hurvt-yorn  of  highways  for  tmbczzlemeiit  of  gravel. 


EMBEZZLEMENT.  205 

coins  of  silver  and  the  said  coins  of  copper,  being  at  the  time  of  the 
committing  of  the  felony  aforesaid,  tiie  property  of  the  United  States 
of  xlmerica,  contrary,  &c.,  and  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 

Second  count. 

{Same  as  first,  except  inserting  at  *  the  axiermenf) :  "  to  wit,  a 
clerk  of  the  mint  of  the  United  States,  for  the  treasurer  of  said  mint." 

Third  count. 

That  the  said  R.  H.  on,  &c.,  at,&c.,  then  and  there  being  an  officer 
of  the  United  States,  having  the  safe-keeping  and  disbursement  of  the 
ordinary  fund  for  paying  the  expenses  of  tlie  mint  of  the  United 
States,  and  charged  with  the  safe-keeping,  transfer  and  disbursement 
of  public  moneys,  unlawfully  and  feloniously  did  convert  to  his  own 
use  and  embezzle  a  portion  of  the  public  money  entrusted  to  him  the 
said  R.  H.  for  safe-keeping,  transfer  and  disbursement,  to  wit,  the 
following  other  coins  of  gold,  which  had  been  struck  and  coined  at 
the  mint  of  the  United  States,  {stating  coins  and  concluding  as 
in  first  count). 

Fourth  count. 

That  the  said  R.  H.  on,  &c.,  at,  &c.,  then  and  there  being  an  agent 
of  the  United  States  charged  with  the  safe-keeping,  transfer  and  dis- 
bursement of  public  m.oneys,  unlawfully  and  feloniously  did  convert 
to  his  own  use  and  embezzle  a  portion  of  the  public  moneys  entrust- 
ed to  him  the  said  R.  H.  for  safe-keeping,  transfer  and  disbursement, 
to  wit,  [proceeding  as  in  first  count  from  t). 

Fifth  count. 

That  the  said  R.  H.  on,  &c.,  at,  &c.,then  and  there  being  an  agent 
of  the  United  States,  to  wit,  a  clerk  of  the  mint  of  the  United  States 
for  the  treasurer  of  the  said  mint,  charged  with  the  safe-keeping, 
transfer  and  disbursement  of  public  moneys,  unlawfully  and  felo- 
niously did  convert  to  his  own  use  and  embezzle  a  portion  of  the 
public  moneys  entrusted  to  him  the  said  R.  H.,  for  safe-keeping, 
transfer  and  disbursement,  to  wit,  the  following  other  coins  of  gold 
whicli  had  been  struck  and  coined  at  the  mint  of  the  United  States, 
[stating  coins  and  concluding  as  in  first  count). 

Sixth  count. 

That  the  said  R.  H.  on,  &.C.,  then  and  there  being  an  agent  of  the 
United  States,  having  the  safe-keeping  and  disbursement  of  the  ordi- 
nary fund  for  paying  the  expenses  of  the  mint  of  the  United  States, 
and  charged  with  the  safe-keeping,  transfer  and  disbursement  of  pub- 
lic moneys,  unlawfully  and  feloniously  did  convert  to  his  own  use 
and  embezzle  a  portion  of  the  public  moneys  entrusted  to  him  the 
said  R.  H.  for  safe-keeping,  transfer  and  disbursement,  to  wit,  the  fol- 
lowing other  coins  of  gold,  which  had  been  struck  and  coined  at  the 
mint  of  the  United  States,  [stating  coins,  and  concluding  as  in  first 
count). 

Seventh  count. 

That  the  said  R.  H.  on,  &c.,  at,  &c.,  then  and  there  being  a  per- 
son charged  by  a  law  with  the  safe-keeping,  transfer  and  disburse- 
ment of  the  public  moneys,  unlawfully  and  leloniously  did  convert  to 
IS 


20G  OFFENCES  AGAINST  PROPERTY. 

liis  own  uso  and  embezzle  a  portion  of  tlie  public  moneys  entrusted 
to  him  llie  said  R.  li.  lor  safe-keeping,  transfer  and  disbursenrent,  to 
wit,  tlie  Ibliowing  other  coins  of  gold  which  had  been  struck  and 
coined  at  the  mint  of  the  United  States,  [stating  coins,  and  con- 
cluding as  in  Jirst  count). [b) 

{For final  count,  see  ante,  p.  17,  97  n,  123  n). 


(h)  U.  S.  V.  Hutchinson,  reported  in  Pa.  L.  J.  for  June,  1848.  The  prisoner  having 
been  convicted,  a  new  trial  was  granted  on  grounds  which,  as  will  be  seen,  do  not  afTect  the 
character  of  tlic  indictment.  Kane  J.:  "  By  tlie  act  of  congress  of  18th  January,  1837,  itis 
c:iHCted  that  'the  officers  of  the  mint  of  tiie  United  States  siiall  be  a  director,  a  treasurer,  a 
melter  and  refiner,  a  chief  coiner  and  an  engraver,'  and  these  are  to  be  appointed  by  the  pre- 
sident with  the  advice  and  consent  of  tlie  senate.  Of  the  treasurer  so  appointed,  it  is  re- 
(juired  among  other  things,  s.  2,  that '  he  shall  receive  and  safely  keep  all  moneys  which 
shall  be  for  the  use  and  support  of  the  mint ;  shall  keep  all  the  current  accounts  of  the 
mint,  and  pay  all  moneys  due  from  the  mint,  on  warrants  from  the  director.'  The  act 
then  provides  for  tlie  appointment  of  assistants  to  certain  of  tlie  officers,  and  of  clerks  for 
ihc  director  and  for  the  treasurer,  in  case  they  siinll  be  needed;  they  are  to  be  appointed 
Iiy  the  director  of  the  mint,  with  tlie  approbation  of  the  president  of  the  United  States,  the 
assistants  '  to  aid  their  principals,'  and  the  clerks  to  '  perform  such  duties  as  shall  be  pre- 
scribed for  them  by  the  director;'  s.  3. 

"I'he  prisoner  was  appointed  under  this  act  in  the  year  1840,  to  be  a  clerk  for  the  trea- 
surer of  the  mint,  and  among  the  duties  prescribed  for  him  by  the  director,  was  the  charge 
of  the  ordinary  or  contingent  fund,  by  which  name  the  moneys  for  the  ordinary  uses  of 
the  mint  were  designated.  In  this  capacity  he  received  the  moneys  of  that  fund  as  they 
were  remitted  or  transferred  to  the  treasurer  of  the  mint  by  the  orders  of  the  treasury  de- 
partment, and  paid  them  out  as  warrants  were  drawn  upon  tiie  treasurer  of  the  mint  by 
the  director,  making  the  proper  entries  of  such  receipts  and  p;iyments  in  the  books  of  ac- 
count of  the  mint.  He  had  the  key  of  a  closet  in  which  the  moneys  of  this  fund  were 
kept,  but  the  outer  key  of  the  vault,  of  whicii  the  closet  formed  ])art,  was  in  the  ciiarge  of 
another  person.  The  books  of  account  were,  all  of  thein,  kept  in  the  name  and  on  behalf 
of  the  treasurer  ;  the  acknowledgments  for  all  moneys  received  were  nnide  by  the  treasurer 
personally,  and  the  charges  for  such  moneys  were  entered  against  him,  and  all  vouchers 
l^)r  payments  were  taken  in  the  treasurer's  name,  and  he  received  credit  for  such  payment. 
The  name  or  intervention  of  the  clerk  did  not  appear  in  any  of  the  books,  vouchers  or  ac- 
counts, either  in  the  mint  or  in  the  accounting  department  at  Washington,  with  which  it 
corres[)onded. 

"  At  the  end  of  the  year  1847,  it  was  ascertained  that  a  large  sum  of  money  was  miss- 
ing from  the  contingent  fund  ;  and  the  prisoner  having  been  arrested,  was  indicted  for 
e.nbezzlemcnt  under  the  acts  of  congress  of  13th  August,  1841,  and  7th  August,  184G. 
He  was  tried  in  the  district  court  and  found  guilty. 

"  I  had  serious  doubts  while  the  case  was  before  tlie  jury,  wliethcr  it  fell  properly  with- 
in  the  provisions  of  the  acts  of  congress  ;  and  as  the  question  was  of  the  first  importance, 
I  was  desirous  that  it  should  be  dit^cussed  more  fully  than  it  could  be  at  bar.  I  therefore 
cliarged  against  the  prisoner  upon  the  several  points  of  law,  announcing  my  purpose,  as 
tlie  case  was  one  in  which  the  circuit  and  district  court  have  concurrent  jurisdiction,  to 
solicit  the  advice  and  aid  of  Judge  Grier  upon  the  hearing  of  a  rule  lor  new  trial,  if  the 
verdict  should  make  such  a  rule  proper. 

"  He  acceded  to  my  wish,  and  the  whole  subject  has  been  revised  before  us  b}'  the  dis- 
trict attorney  and  the  counsel  fbr  the  prisoner  in  the  most  ample  manner.  The  result  is 
an  unhesitating  concurrence  of  opinion  between  my  learned  brother  and  myself,  that  the 
verdict  cannot  stand.  We  regard  the  history  and  s|)iiit  of  these  acts  of  congress,  as  well 
as  their  [)hraseology,  altogether  conclusive  upon  the  (piestion. 

"At  the  coniuKm  law,  tlic  i)arty  who  by  the  confidence  of  another  is  entrusted  with  the 
possession  of  his  projjcrty,  cannot  cotntnit  the  crime  of  larceny  by  appropriating  it  to  his 
own  use.  The  fidueiiiry  character  of  the  delinipient  forms  his  defence,  for  the  criminal 
law,  until  it  was  modified  by  statute,  took  no  cogni/iince  of  breaches  of  trust. 

"  At  the  same  time,  it  distinguished  l)etween  the  lrr>al  possession  of  properly,  such  as  the 
very  exiHlcnce  of  a  trust  implies,  and  tiiat  mere  chinge  or  svpervision,  which  is  devolved 
on  a  servant  or  clerk.  The  servant  having  d  hare  charge,  to  use  the  words  of  the  law,  be- 
came gnilly  of  llieCt  by  a  fraudulent  eoiivcrsion. 

"Thus,  on  the  one  hand,  a  butler  who  lu>d  charge  of  his  Tnastcr's  plate,  the  shepherd 


EMBEZZLEMENT.  207 

Against  same  person  for  same,  charging  him  with  being  a  person  em- 
ployed at  the  mint. 

That  R.  H.,  &c.,  on,  &c.,  at,  Sec,  then  and  there  being  a  person 
employed  at  the  mhit  of  the  United  States,  witli  force  and  arms,  uii- 


who  watched  over  his  sheep,  and  the  shop-boy  who  attended  behind  his  counter,  migfht  be 
convicted  of  larceny,  if  they  converted  to  their  own  use  their  master's  pro])erty.  While,  on 
the  other  hand,  the  attorney  who  piliag'ed  his  principal,  tlic  guardian  who  defrauded  his 
ward,  and  the  otficer  who  embezzled  public  moneys  wliieh  the  law  had  confided  to  him, 
were  not  answerable  as  for  crime.    {See  the  cases  in  Wh.  C.  L.  405-6.) 

"The  United  States  courts  have  no  common  law  jurisdiction,  that  is  to  say,  they  deiive 
their  only  power  to  try,  convict  or  punish,  from  the  constitution,  and  the  laws  made  in  pur- 
suance  of  it.  The  jurisdiction  of  ofFcnces  which  are  cog-nizable  at  common  law  reside  in 
tlic  state  courts  alone,  even  though  the  general  government  may  be  the  party  immediately 
aggrieved  by  the  misdeed  complained  of 

"Until  the  year  1840,  the  congress  of  the  United  States  seems  to  have  been,  in  general, 
content  with  the  protection  which  the  laws  of  the  several  states  gave  to  the  public  property 
within  their  limits.  The  integrity  of  subordinates,  who  were  not  themselves  entrusted 
with  public  money,  though  they  might  from  their  position  have  a  certain  ciiarge  or  custo- 
dy of  it,  was  guarded  of  course  by  the  common  law  and  the  local  statutes,  as  administered 
by  the  state  courts.  Under  these,  such  a  subordinate,  whether  called  by  the  name  of 
watchman,  servant,  clerk  or  assistant,  miirlit  be  punished  criminally  for  a  fraudulent  con- 
version to  his  own  use  of  the  moneys  of  the  general  government.  But  the  higher  officers, 
the  heads  of  departments,  the  treasurers  of  the  United  States  and  of  the  mint,  the  collectors 
of  customs,  land  officers  and  others,  depositaries  of  important  public  trusts,  though  required 
in  some  instances  to  give  security  for  their  official  fidelity,  were  punishable  only  by 
impeachment  before  the  Senate  of  the  United  States, 

"  Several  very  large  defaults  having  occurred,  however,  on  tfee  part  of  important  public 
officers  of  the  revenue,  it  was  thought  necessary  to  protect  the  treasury  by  additional  safe- 
guards. On  the  4th  of  July,  1840,  an  act  of  congress  was  passed  'to  provide  for  the  col- 
lection, safe-keeping,  transfer  and  disbursement  of  the  public  revenue,'  This  act  created 
and  defined  the  crime  of  embezzlement,  and  made  it  aijplicable  to  all  those  officers  who 
were  charged  by  tlie  provisions  of  the  act  itself  with  the  '  safe-keeping,  transfer  or  dis- 
bursement of  public  moneys.'  As  to  all  others,  officers  as  'well  as  servants  or  clerks,  ex- 
cept those  connected  with  the  post-office  (to  whom  it  was  specially  extended),  it  left  the 
law  unchanged. 

"  The  act  of  1840  was  repealed  on  the  13th  of  August  of  the  following  year,  but  the  pro- 
visions respecting  embezzlements  were  re-enacted  in  a  slightly  modified  form,  so  as  to  in- 
clude among  those  who  might  become  subject  to  its  penalties,  all  ^officers  charfced  with  the 
safe-keeping,  transfer  or  disbursement  of  the  public  moneys,  or  connected  with  the  post- 
office  department.'  But  as  to  all  but  officers  so  charged,  it  left  the  law  as  it  stood  before  the 
year  1840. 

"The  act  of  1846  followed.  This  substantially  reconstituted  tlie  treasury  system  which 
had  been  rescinded  in  1841,  but  made  further  provision  also  for  the  punishment  of  embez- 
zling. Its  terms  are  somewhat  broader,  perhaps,  than  those  of  the  two  preceding  acts, 
for  they  apply  to '  all  officers  and  other  persons  char/red  by  this  act  or  any  other  act  with 
the  safe-keeping,  transfer  and  disbursement  of  public  moneys.'  But  its  spirit  and  objects 
are  the  same  ;  and  the  detailed  provisions  of  its  several  sections  have  obvious  reference  to 
|»ersons  entrusted  by  some  act  of  congress  with  the  legal  possession  of  public  money,  not 
to  those  subordinates,  who,  not  having  been  entrusted  with  such  possession,  could  be  pun- 
ished for  a  fraudulent  conversion,  as  felons,  without  any  congressional  legislation.  The 
act  throughout  applies  not  to  clerks,  workmen  or  other  servants,  but  to  the  legally  author- 
ized custodiers  of  public  moneys,  the  '■  fiscal  agents''  recognized  as  such  at  the  treasury  of 
the  United  States,  ciiarged  tiiere  with  recci|)ts,  and  credited  with  disbursements,  in  a  word, 
to  officers  or  agents  '  entrusted '  by  law  or  under  law  with  the  possession  of  public  money, 
and  bound  to  account  for  it. 

"The  duties  which  it  enjoins,  the  safeguards  and  checks  which  it  creates,  the  direct  ac- 
countability which  it  |)rescribcs  and  enforces,  the  evidence  it  ap[)cals  to  as  establishing  the 
fiiet  of  delinciuency — even  the  allowance  it  makes  for  certain  official  expenses — all  together 
stamp  on  it  this  limited  character.  Thus,  it  requires  of  the  officer  that  he  shall  keep  an 
accurate  entry  of  each  sum  that  he  receives,  and  each  payment  or  transfer  that  he  makes; 


208  OFFENCES  AGAINST   PROPERTY. 

lawfully  nnd  feloniously  did  embezzle  certain  coins  of  gold  which 
liad  been  struck  and  coined  at  the  said  mint,  to  wit  {stating  the  coins),  * 
the  said  coins  of  gold  and  the  said  coins  of  silver  and  the  said  coins 
of  copper,  being  at  the  time  of  the  committing  of  the  felony  aforesaid 
the  property  of  the  United  States  of  America,  contrary,  &c.,  and 
against,  &c.     [Conclude  as  in  book  1,  chajj.  3). 

Second  count. 

That,  &c.,  the  said  R.  H.,  then  and  there  being  a  person  employed 
at  the  mint  of  the  United  States,  to  wit,  a  clerk  of  the  said  mint  for 
the  treasurer  of  the  said  mint,  with  force  and  arms,  unlawfully  and 
feloniously  did  embezzle,  certain  other  coins  of  gold  struck  and  coined 
at  the  said  mint,  to  wit  [stating  the  coins,  and  concluding  as  in  first 
count  from.  *). 

[For  final  count,  see  ante,  p.  19,  97  n,  123  n). 


obviously  with  reference  to  the  account  he  is  to  render  of  liis  receipts  and  disbursements 
at  tlic  treasury  dc])artinent ;  it  makes  iiim  punishable  if  he  transmits  to  the  treasurer  a  false 
vouclier,  or  a  voucher  that  docs  not  truly  represent  a  payment  actually  made;  a  transcript 
from  the  treasury  books  showing  a  balance  against  liim  is  made  sufficient  evidence  of  his 
indebtedness  ;  '  a  draft,  warrant  or  order,  drawn  by  the  treasury  department  upon  him,' 
and  not  paid,  is  the  prirriary  j)roof  of  his  embezzlement;  and  provision  is  made  for  the 
necessary  clerk  hire,  and  other  expenses  of  a  large  class,  at  least  of  the  officers  included 
within  its  terms. 

"  It  needs  no  argument  to  show,  that  these  enactments  are  without  just  application  to  a 
person  who  is  merely  a  clerk  himself,  who  is  unknown  to  the  treasury  department,  who 
is  neither  charged  nor  credited  with  public  moneys  there  or  elsewhere,  who  transmits  no 
vouchers,  because  he  renders  no  account,  against  whom  therefore  no  treasury  transcript 
can  ever  be  produced,  on  whom  no  treasury  draft,  warrant  or  order  can  be  drawn  under 
any  circumstances,  and  to  whom  neither  the  act  of  1846  nor  any  other  act  has  ever  en- 
trusted public  moneys,  either  personally  or  by  official  designation. 

"The  prisoner  was  such  a  person.  In  point  of  fact,  he  was  never  in  legal  possession  of 
the  moneys  he  has  abstracted.  They  were  moneys  of  the  United  States,  in  which  he  had 
no  special  or  qualified  property,  which  had  been  entrusted  to  the  safe-keeping  of  the  trea- 
surer of  the  mint  by  the  exjjrcss  language  of  an  act  of  congress,  and  wliich  could  not  be 
withdrawn  from  his  legal  custody  and  cliarge  except  by  warrant  of  an  appropriate  officer 
in  the  form  designated  by  law. 

"  We  do  not  understand  that  the  prescription  of  the  clerk's  duties  by  the  director,  was 
intended,  or  su|)|)osed  to  interfere  with  this  ofFieial  charge  of  the  treasurer.  Had  it  been 
so,  there  would  have  been  some  record,  some  book  entry,  some  memorandum  at  least  in 
the  mint,  showing  the  character  if  not  the  amount  of  liabilities,  from  which  the  treasurer 
could  claim  to  be  relieved  by  the  clerk's  assumption  of  them.  "^I'here  would  have  been 
some  recognition  of  the  fact  at  the  treasury  in  Washington,  if  the  clerk  had  been  consti- 
tuted a  receiving,  safe-kee[)ing  or  disbursing  officer;  he  would  have  been  called  on,  as  by  law 
all  such  officers  are  called  on,  to  render  his  accounts,  to  declare  from  time  to  time  what 
moneys  he  had  received,  to  exhibit  vouchers  for  liis  disbursements,  and  thus  to  define  the 
extent  of  his  liabilities  to  the  United  States. 

"  But  whatever  may  have  been  the  terms,  or  the  usage,  or  the  understanding  which 
pro])oscd  to  set  forth  the  prisoner's  duties  as  a  clerk,  they  could  not  absolve  the  treasurer  from 
tJiat  legal  custody  with  which  the  act  of  congress  and  his  commission  had  invested  him. 
Tlie  clerk's  ])osscssion,  whatever  it  was,  was  in  law  the  ])ossession  of  the  treasurer;  and 
the  clerk's  liabilities,  therefore,  upon  the  facts  found  by  the  jury,  are  those  of  a  servant 
merely,  not  of  a  person  either  '  charged  '  or  '  entrusted  by  law  '  with  the  safe-keeping, 
transfer  or  disbursement  of  the  public  moneys. 

"  The  case  is  one  to  which  the  .statute  does  not  extend,  and  the  rule  must  therefore  be 
m.'ide  absolute." 

The  indictments  in  the  text  were  prepared  by  Mr.  Pettit,  the  learned  and  experienced 
district  attorney  in  Thiladelphia. 


EMBKZZLEMENT.  201) 

Enihezzlement  under  the  Mass.  Rev.  Stat.{c) 

That  T.  S.,  &c.,  on,  &c.,  at,  &c.,  solicited  employment  as  an  auc- 
tioneer of  and  for  E.  G.  of  said  Boston,  merchant,  and  in  considera- 
tion that  said  G.  would  employ  him  as  his  agent  for  the  sale  of  cotton 
goods,  undertook  and  engaged  to  serve  said  G.  as  his  agent  in  that 
employment,  and  stipulated  to  pay  over  to  said  G,  promptly  and 
witliout  delay  the  cash  proceeds  of  said  cotton  goods  at  eight  cents 
per  yard  which  said  S.  should  sell  for  him  at  public  auction;  and 
afterwards,  at  said  Boston,  said  G.  delivered  to  and  entrusted  to  said 
S.,  in  said  employment  as  his  agent,  sundry,  to  wit,  four  bales  of  cot- 
ton goods  to  be  sold  as  aforesaid,  and  the  cash  proceeds  thereof  at 
eight  cents  for  each  yard  to  be  promptly  paid  by  said  S.  to  said  G., 
and  within  three  days  after  the  sale  of  each  of  said  bales  of  goods 
and  by  virtue  of  said  employment,  and  as  agent  of  said  G,  as  afore- 
said, said  S.  took  and  received  said  goods  and  sold  the  same  for  cash, 
and  received  in  payment  therefor  the  money  and  price  and  proceeds 


(c)  Com.  V.  Stearns,  2  Met.  343.  Dewey  J.:  "The  questions  raised  in  tlie  present  cnse 
require  a  construction  of  tiie  Rev.  Stats,  c.  126,  s.  29,  and  are  of  no  inconsiderable  im- 
portance in  tiieir  consequences,  in  marking  the  distinction  between  those  acts  which  are  to 
be  denominated  as  felonies  punishable  by  ignominious,  and  those  defaults  in  the  payment 
of  money  or  in  the  discharge  of  contracts,  for  which,  however  unjustifiable,  the  law  author- 
izes no  other  mode  of  redress  than  a  civil  action  by  the  party  aggrieved. 

"The  princi[)les  of  the  common  law  not  being  found  adequate  to  protect  general  owners 
against  the  fraudulent  conversion  of  property  by  persons  standing  in  a  certain  fiduciary 
relation  to  those  who  were  the  subjects  of  their  peculations,  certain  statutes  have  been 
enacted,  as  well  in  England  as  in  this  commonwealth,  crealing  new  criminal  offences  and 
annexing  to  them  their  proper  punishments.  The  consequence  is,  therefore,  that  many 
acts  which  formerly  were  denominated  mere  breaches  of  trust,  and  subjected  the  party  to 
a  civil  action  only,  have  now  become  cognizable  before  our  criminal  courts,  as  offences 
against  the  commonwealth.  The  statutes  necessarily  require  a  careful  discrimination  in 
their  application  to  the  various  cases  that  may  arise,  and  it  may  be  found  somewhat  dif- 
ficult to  mark  out,  with  entire  precision,  the  line  of  discrimination  between  the  nets  punish- 
able as  crimes  under  these  statutes,  and  those  that  may  not  be  emi)raced  by  them,  while 
they  may  yet  present  strong  cases  of  breach  of  good  faith  and  violation  of  the  confidence 
reposed  in  the  party  guilty  of  the  breach  of  trust. 

"  The  court  have,  therefore,  very  carefully  considered  the  facts  disclosed  in  the  case  now 
before  us,  and  the  result  to  which  we  have  arrived  will  be  stated,  after  disposing  of  a  pre- 
liminary objection  that  was  suggested  by  the  counsel  for  the  defendant,  though  apparently 
not  much  relied  on. 

"  This  objection  was,  that  it  is  necessary,  in  order  to  bring  the  offence  within  the  Rev. 
Stats,  e.  12G,  s.  29,  that  the  property  embezzled  should  belong  to  some  other  person  than 
the  master  or  principal,  whose  servant  or  agent  is  charged  with  the  embezzlement;  inas- 
much as  tlie  statute  provides  that  'if  any  cleik,  agent  or  servant,  &c.,  shall  embezzle  or 
fiaudulently  convert  to  his  own  use,  witliout  the  consent  of  his  employer  or  master,  any 
money  or  property  of  another,'  &c. 

"A  similar  objection  appears  to  have  been  overruled  by  the  Supreme  Court  of  the  State 
of  New  York,  in  an  indictment  on  the  Revised  Statutes  of  that  state,  vol.  2,  p.  678,  s.  59  ;  a 
statute  from  which  ours  seems  substantially  to  have  been  framed.  The  words  there  used 
are,  '  belonging  to  any  other  persf)n ;'  but  the  court  held  that  these  words,  as  used  in  the 
statute,  meant  any  other  person  than  he  who  is  guilty  of  embezzlement;  F^eople  v.  Hen- 
nessey, 15  Wend.  147.  A  different  construction  from  this  would  be  inconsistent  with  the 
earlier  course  of  legislation  on  this  subject,  (sec  stat.  1834,  c.  186),  and  would  leave  un- 
provided for,  all  cases  of  embezzlement,  by  servants  or  agents,  of  the  property  of  their 
masters  or  their  principals.  VVe  arc  of  opinion  that  that  olfence,  made  punishable  by  the 
Revised  Statutes  of  this  commonwealth,  e.  126,  s.  29,  w^-^s  not  intended  to  be  restricted  in 
the  manner  suggested  by  the  counsel  tor  the  defendant,  but  may  properly  be  held  to  em- 
brace cases  of  embezzlement,  by  servants  or  agents,  of  the  properly  of  their  masters  or 
principals." 

IS* 


2i0  OFFENCES    AGAINST    PROPERTY. 

thereof,  to  wit,  the  sum  of  two  hundred  and  seventy-two  dollars, 
which  money  and  proceeds  of  said  goods  came  mto  the  hands  and 
possession  of  said  S.  by  virtue  of  said  employment,  and  as  the  agent 
and  servant  of  said  G.,  under  the  trust  and  agreement  aforesaid;  and 
the  jurors,  &c.,  on  their  oaths  aforesaid,  do  further  present,  that  the 
said  T.  S.,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  then  and  there  having  in 
his  possession  the  said  money  and  proceeds  of  said  goods  sold  by  him 
for  said  G.,  the  same  money  and  proceeds  being  the  property  and  mo- 
ney of  said  G.,in  the  hands  of  said  S.  as  his  agent  and  servant  as  afore- 
said, and  which  same  money  and  proceeds  came  into  the  hands  and 
possession  of  said  S.  by  virtue  of  his  employment  as  agent  of  said  G., 
and  of  the  trust  aforesaid,  to  wit,  the  sum  of  two  hundred  and  seventy- 
two  dollars,  he  the  said  S.  then  and  there  unlawfully  and  fraudu- 
lently embezzled  and  converted  the  same  to  his  own  use,  and  took 
and  secreted  the  same  with  intent  to  embezzle  and  convert  the  same 
to  his  own  use,  without  consent  of  said  G.,  his  said  employer,  the 
same  being  the  money  and  property  of  said  G.,  which  came  to  the 
possession  of  said  S.,  and  was  under  his  care  by  virtue  of  said  em- 
ployment, and  by  said  embezzlement,  conversion  and  secreting  of  the 
same  money  and  property  as  aforesaid,  and  by  force  of  the  statute  in 
such  case  made  and  provided,  said  S,  is  deemed  to  have  committed 
tlie  crime  of  simple  larceny. 

Second  count.     Larceny. 

Tiiat  said  S.,  on,  &,c.,  at,  &c.,  the  same  money  and  proceeds  afore- 
said of  tlie  proper  money  and  property  of  said  G.,  in  his  possession 
as  aforesaid,  feloniously  did  steal,  take  and  carry  away,  against,  &c., 
and  against,  &c.     {Conclude  as  in  book  \,  chap.  3). 

[^For  indictment  agaijist  factor  for  converting  pinncipaPs  fund  to  his 
oiim  use,  ^c,  under  Pennsylvania  statute,  see  Index,  tit.  "Factor'^']. 

General  form  of  indictment  in  New  York. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  was  employed  in  the  capacity  of 
a  clerk  and  servant  to  one  C.  D.,  and  as  such  clerk  and  servant  was 
entrusted  to  receive,  &c.  {stating  the  nature  of  the  trust),  and  being 
so  employed  and  entrusted  as  aforesaid,  the  said  A.  B.,  by  virtue  of 
such  employment,  then  and  there  did  receive  and  take  into  his  pos- 
session [stating  the  subject  of  the  embezzlement),  for  and  on  ac- 
count of,  &c.,  his  said  master  and  employer ;  and  that  the  said  A.  B.,  on 
the  day  and  year  last  aforesaid,  with  force  and  arms,  at  the  ward,  city 
and  county  aforesaid,  fraudulently  and  feloniously  did  take,  make 
way  with  and  secrete,  and  did  embezzle  and  convert  to  his  own  use, 
without  the  assent  of  the  said  C.  D.  his  master  and  employer,  the 
said,  &c.,  of  tlie  goods,  chattels,  personal  property  and  money  of  the 
said  C.  I).,  which  said  goods,  chattels,  })ersonal  property  and  money 
had  come  into  his  possession  and  under  his  care,  by  virtue  of  his 
being  such  clerk  and  servant  as  aforesaid,  to  the  great  damage  of  the 
said  C.  I).,  &.C.     {Co7iclu^e  as  in  book  1,  chap.  3). 

Second  count.     Larceny. 

Tliat  the  said  A.  B.,  on,  &.C.,  at,  itc,  of  the  goods,  chattels  and  per- 


EMBEZZLEMEIVT.  211 

sonal  property  of  one  C.  D.,  then  and  there  being  found,  feloniously 
did  steal,  take  and  carry  away,  to  the  great  damage  of  the  said  C.  D., 
against,  &,c.,  and  against,  &c.     {Conclude  us  in  book  1,  chap.  3). 

Embezzlement  by  clerk  or  servant.{d) 

That  J.  S.,  &c.,  on,  &c.,  at,  &:c.,  being  then  and  there  employed  as 
clerk  ("  clerk  or  servant,  or  any  person  employed  for  that  pur- 
pose, or  in  the  capacity  of  a  clerk  or  servant"),  to  J.  N.,  did  by  vir- 
tue of  his  said  employment,  then  and  there,  and  whilst  he  was  so 
employed  as  aforesaid,  receive  and  take  into  his  possession  certain 
money  ("chattel,  money  or  valuable  security"),(e)  to  a  large  amount, 
to  wit,  to  the  amount  of  ten  pounds,  for  and  in  the  name  and  on  the 
account  of  the  said  J.  N.,  his  master,  and  the  said  money  then  and 
there  fraudulently  and  feloniously  did  embezzle ;  and  so  the  jurors, 
&c.,  do  say,  that  the  said  J.  S.,  on,  &c.,  at,  &.C.,  then  and  there  in 
manner  and  form  aforesaid,  the  said  money,  the  property  of  the  said 
J,  N.  his  said  master,  from  the  said  J.  N.  feloniously  did  steal,  take  and 
carry  away,  against,  &c.,  and  against,  &c.  {Conclude  as  in  book 
1,  chap.  3). 

{If  the  -jmsoner  has  been  guilty  of  other  acts  of  embezzlement  within 
the  period  of  six  months,  add  the  following) : 

That  the  said  .1.  S.,  on,  &c.,  at,  &c.,  afterwards  and  within  six 
calendar  months  from  the  time  of  the  committing  of  the  said  offence 
in  the  first  count  of  this  indictment  charged  and  stated,  to  wit,  on  the 
day  of  in  the  year  aforesaid,  at  the  parish  aforesaid,  in 

the  county  aforesaid,  being  then  and  there  employed  as  clerk  to  the 
said  J.  N.,  did  by  virtue  of  such  last  mentioned  employment,  then  and 
there,  and  whilst  he  was  so  employed  as  last  aforesaid,  receive  and 
take  into  his  possession  certain  other  money  to  a  large  amount,  to 
wit,  to  the  amount  of  ten  pounds,  for  and  in  the  name  and  on  the 
account  of  the  said  J.  N.,  his  said  master,  and  the  said  last  mentioned 
money  then  and  there  within  the  said  six  calendar  months,  fraudu- 
lently and  feloniously  did  embezzle,  and  so,  &:c.,  {as  in  the  first  count 
to  the  end). 


(d)  Archbold's  C.  P.  5th  Am.  ed.  329. 

This  form  is  drawn  upon  the  statutes  7  and  8  Geo.  IV.  c.  29,  s.  47;  which,  for  the 
punishment  of  embezzlements  committed  by  clerks  or  servants,  declares  and  enacts,  that 
if  any  clerk  or  servant,  or  any  person  employed  for  the  purpose,  or  in  the  capacity  of  a 
clerk  or  servant  shall,  by  virtue  of  such  employrtient  receive,  or  take  into  his  possession 
any  chattel,  money  or  valuable  security,  for  or  in  the  name  or  on  the  account  of  his  mas- 
tcr,  and  shall  fraudulently  embezzle  the  same  or  any  part  thereof,  every  such  offender  shall 
be  deemed  to  have  feloniously  stolen  the  same  from  his  master,  althoua^h  such  chattel, 
money  or  security  was  not  received  into  the  possession  of  such  master  oliicrwise  than  by 
the  actual  possession  of  his  clerk,  servant  or  other  person  so  employed;  and  every  such 
offender,  being-  convicted  thereof,  shall  be  liable  at  the  discretion  of  the  court,  to  any  of 
the  punisiimcnts  which  the  court  may  award  as  hereinbefore  last  mentioned. 

(e)  See  7  and  8  Geo.  IV.  c.  29,  s.  5. 


212  OFFENCES  AGAINST  PROPERTY. 

CHAPTER  VIII. 

MALICIOUS    MISCHIEF. 

[Fw  several  forms  of  indictments  ichich  might  he  classed  under  this 
head,  see  ^'Breaches  of  the  Peace,'^  ''Assaults,"  ^-c] 

Malicioushj  wounding  a  cow.{a) 

That  A.  B.,&c.,  on,  &c.,at,  &c.,  one  cow, (6)  of  the  price  of  seven 
pounds,  of  the  goods  and  chattels  of  C.  D.,(c)  then  and  there  being, 
unlawfully,  wilfully  and  maliciously  did  wound, (a^)  to  the  great 
damage  of  the  said  C.  D.,  against,  &c.  {Conclude  as  in  book  1,  chap.  3). 

Giving  cantharides  to  prosccutors.{e) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  unlawfully  did  assault  M.  A.  W. 
and  M.  C,  and  then  and  there  unlawfully,  knowingly,  wickedly  and 
maliciously  did  administer  to  and  cause  to  be  administered  to  and 
taken  by  the  said  M.  A.  W.  and  M.  C,  a  large  quantity,  that  is  to 
say,  two  scruples  of  cantharides,  the  same  then  and  there  being  a 
deleterious  and  destructive  drug,  with  intent  thereby  to  injure  the 
health  of  the  said  M.  A.  W.  and  M.  C,  and  the  said  M.  A.  W.  and 
M.  C.  thereby  then  and  there  became  sick,  sore,  diseased  and  disor- 
dered in  their  bodies,  insomuch  that  their  lives  were  despaired  of,  to 
the  great  damage,  &,c. 

Tearing  up  a  -promissory  note.(ee) 

That,  &c.,  on,  &c.,  at,  &c.,  a  certain  promissory  note  for  the 
payment  of  money,  commonly  called  a  due  bill,  made  and  drawn  by 
the  said  W.,  in  favour  of  one  A.  R.  C,  and  dated  for  the  sum 

and  of  the  value  of  five  dollars,  of  the  property  of  the  said  A.,  the 
said  note  and  due  bill  being  then  and  tliere  due  and  unpaid  by  iiini 
the  said  W.,  did  wilfully,  maliciously  and   fraudulently  tear   and 

(a)  Stark.  C.  P.  4G3.  As  to  tlic  validity  of  tliis  indictment  at  common  law,  sec 
Com.  V.  I>cacii,  1  Mass.  .'J9  ;  People  v.  f;initli,  .'>  Cow.  258 ;  Res.  v.  Teisclicr,  1  Dall.  .335  ; 
State  ».  Council,  Tenn.  305;  Looniis  v.  Edgcrtori,  19  Wend.  419;  Slate  v.  VVliccler,  3 
Verm.  344, 

(b)  This  is  a  sufficient  dcscrijition  ;  State  v.  Pearce,  Peck  66.  The  same  precision 
sliould  be  used  as  in  larceny.     See  ante,  p.  190. 

(c)  Any  mistake  in  tiie  name  of"  the  owner  will  be  fatal;  Haworth  i\  State,  Peek  89. 
Observe  the  same  particularity  as  in  larceny.     See  ante,  p.  199. 

(</)  It  is  not  necessary  at  common  law,  separately  to  charge  malice  against  the  owner. 
State  V.  Scott,  2  Dev.  &  Hat.  35. 

(e)  R.  V.  Button,  8  C.  &,  P.  660. 

This  count,  which  in  this  country  would  ho  cl.isscd  under  the  head  of  malicious  niis- 
cliief,  appears  to  have  been  treated  as  an  indictment  (or  an  assault  at  conimnn  law,  and  to 
liuvc  been  sustained  as  such.    Whatever  may  he  its  nature,  it  is  important  as  a  prcecdcnl. 

(re)  For  this  form  I  am  indebted  to  Mr.  David  Webster,  the  ellicient  anil  intcliii^ent 
assibluut  of  the  atlorncy-general  of  Pennsylvania. 


MALICIOUS  MISCHIEF.  213 

destroy,  with  the  intent  then  and  there,  and  thereby  to  cheat  and 
defraud  the  said  A.,  to  the  great  damage  of  the  said  A.,  to  the  evil 
example  of  all  others  in  like  case  oflending,  and  against,  &c.  {Con- 
clude as  in  book  \,  chap,  3). 

Cuiling  down  trees,  ^'C.{f) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  wilfully  and  maliciously  did 
cut  down  and  destroy  ten  ash  trees,  planted  in  a  certain  avenue  to 
the  dwelling  house  of  one  M.  N.,  and  then  growing  for  ornament 
there,  (he  the  said  M.  N.  then  and  there  being  the  owner  of  the  said 
trees),  to  the  great  damage  of  the  said  M.  N.,  against,  &c.  (Conclude 
as  in  book  1,  chap.  3). 

Killing  a  steer  at  common  lair.{g) 

That  D.  S.,  &c.,  on,  &c.,  at,  &c.,  one  steer  .of  the  value  of  five  dol- 
lars, of  the  goods  and  chattels  of  one  L.  M'C,  then  and  there  being, 
then  and  there  unlawfully,  wantonly,  maliciously  and  mischievously 

(/)  See  Stark.  C.  P.  4G3.  I  appreliend  this  form  would  be  good  at  common  law ;  Com.z). 
Eckert,  2  Browne  251 ;  Loomis  v.  Edgerton,  19  Wend.  420;  though  see  Brown's  case,  3 
Greenl.  177. 

(0-)  State  V.  Scott,  2  Dev.  &  Bat.  35. 

Daniel  J.,  after  stating  tlie  substance  of  the  case  as  above,  proceeded  : — "We  see  no 
ground  for  a  new  trial  in  this  case.  The  evidence  objected  to  was  admitted — and,  as  we 
think,  correctly — to  repel  an  allegation  made  by  the  defendant,  of  an  nlihi.  And  after  the 
evidence  was  admitted  by  the  court,  the  weight  and  effect  of  it  was  matter  for  the  jury 
only ;  and  it  seems  to  us,  that  tliero  was  nothing  left  for  the  court  to  remark  upon,  espe- 
cially, as  no  particular  charge  concerning  this  evidence  was  prayed  by  the  defendant.  We 
have  examined  the  reasons  in  arrest,  and  concur  in  opinion  with  the  judge  wlio  pronounced 
the  judgment.  1st.  The  two  detaclicd  pieces  of  paper  writing  purporting  to  be  a  tran- 
script of  the  record,  contained  every  tiling  necessary  to  give  Buncombe  Superior  Court  ju- 
risdiction ;  it  contained  tlie  indictment,  plea  and  order  of  removal.  In  that  shape  it  was 
entered  on  the  state  docket,  and  the  defendant  went  to  trial.  From  great  caution,  the 
judge  suspended  judgment  at  the  trial  term,  and  sent  a  certiorari  for  such  a  record  as  could 
not  be  cavilled  about.  At  the  term  judgment  was  rendered,  the  record  was  unexception- 
able, and  showed  that  the  two  pieces  of  paper  whieli  had  been  received  as  the  record  of  the 
case,  and  on  which  the  defendant  had  been  tried,  contained  a  true  and  complete  transcript 
of  the  record  when  it  was  removed  from  Rutherford.  So,  wlien  judgment  was  pronounced, 
the  record  showed  that  the  case  had  been  properly  removed,  and  that  Buncombe  Superior 
Court  had  jurisdiction  of  the  case,  at  the  term  the  trial  took  place.  The  record  being  un- 
exceptionable when  judgment  was  prayed,  there  was  nothing  to  restrain  the  judge  from 
pronouncing  it. 

"2dly.  This  court  decided,  in  the  case  of  the  State  v.  Simpson,'2  Hawks  4G0,  that  an 
indictment  for  malicious  miscliief,  which  concluded  at  common  law,  was  good. 

"  That  decision  was  made  in  the  year  1823,  and  since  tliat  time  many  convictions  on 
indictments  for  malicious  mischief,  at  common  law,  have  taken  place  in  tlie  circuits  of  this 
state.  In  the  year  1826,  the  legislature  indirectly  approved  of  the  decision;  for  in  the  act 
limiting  the  time  that  indictments  for  misdemeanors  should  be  brought,  it  is  declared,  that 
in  all  trespasses  and  other  misdemeanors,  except  the  offences  of  perjury,  forgery,  malicious 
mischief  and  deceit,  the  prosecution  shall  commence  within  three  years  after  the  commis- 
sion of  the  offence.  After  wiiat  has  taken  place,  we  think  the  period  too  late  for  us  now 
to  examine  further  into  the  question. 

"  3dly.  The  objection  is,  that  the  indictment  does  not  charge  malice  against  the  owner 
of  the  property.  We  iiave  looked  into  the  books  of  forms  and  precedents,  and  find  that  the 
form  of  this  indictment  corresponds  with  the  forms  prescribed  in  the  books.  What  evi- 
dence  the  state  must  produce  to  support  such  an  indictment  as  this,  we  are  not  called  on 
to  decide.  We  ^hink  there  is  no  ground  for  a  new  trial  or  arrest  of  judgment;  and  this 
opinion  will  be  certified  to  the  Superior  Court  of  Law  for  tlie  County  of  Buncombe,  that  it 
may  proceed  to  final  judgment  in  the  case." 


214  OFFENCES  AGAINST  PROPERTY. 

did  kill,  to  the  great  damage  of  the  said  L.  M'C,  and  against,  (Sec. 
{Conclude  as  in  book  1,  chap.  3). 

Altering  the  j?iai-h  of  a  sheep,  under  the  A'orlh  Carolina  slatute.Qi) 
That  J.  D.,  &:c.,  on,  &c.,  at,  &c.,  feloniously  and  knowingly  did 

(Ji)  State  13.  Davis,  2  Iredell  153. 

Gaston  J.:  "  We  are  of  opinion  that  tlie  appellant  has  not  shown  any  error  in  the  in- 
structions to  the  jury,  nor  sufficient  reasons  to  arrest  tlic  judgment. 

'■The  indictment  is  founded  on  the  act  of  18:22,  c.  1155,  re-enacted  in  the  Revised  Stat. 
c.  34,  E.  55,  whereby  it  is  declared,  '  that  if  any  person  sliall  knowingly  alter  or  deface  the 
mark  or  trand  of  any  person's  neat  cattle,  sheep  or  hog,  shall  knowingly  mismark  or  brand 
any  unbrandcd  or  unmarked  neat  cattle,  sheep  or  hog,  not  properly  his  own,  with  intent  to 
defraud  any  other  person,  he  shall,  on  conviction  in  a  court  of  record,  be  liable  to  corporal 

,  punisliment  in  the  same  manner  as  on  a  conviction  of  petit  larceny.'  The  manifest  pur- 
pose of  the  legislature  is  to  punish  the  act  of  changing  or  defacing  these  marks  or  brands, 
vvhicii  are  the  ordinary  indications  of  ownershi[)  in  i)roperty  of  tliis  description,  and  also 
tlie  act  of  putting  false  marks  or  brands  thereon,  with  intent  to  injure  the  owner  by  either 
depriving  him  of  the  property  or  rendering  his  title  tliereto  more  difficult  of  proof  JNow, 
when  the  act  of  wilfully  changing  or  defacing  the  mark  is  fixed  upon  the  person  accused, 
and  no  explanation  is  given  of  the  act  to  render  it  consistent  with  an  honest  purpose,  the 
conclusion  follows  irresistibly  that  it  was  done  with  intent  to  effisct  the  injury  which  is 
the  ordinary  and  necessary  consequence  of  the  act.  Such  intention  is  directed  against  the 
owner,  whoever  he  may  be,  and  the  charge  that  the  act  was  done  with  intent  to  injure 
any  individual  named,  is  made  out,  when  it  is  shown  that  he  was  the  owner  at  the  time 
when  the  act  was  committed. 

"  It  has  been  contended  by  the  counsel  for  the  appellant  that  the  offence  created  by  the 
statute  and  charged  in  the  indictment  could  not  have  been  committed,  because  at  the  time 
when  the  act  was  done,  the  animal  had  strayed  from  the  possession  of  the  owner,  and  tlie 
statute  by  declaring  that  the  offender  shall  be  liable  to  corporal  punishment  in  the  same 
manner  as  on  a  conviction  of  petit  larceny,  must  be  understood  as  applying  to  those  cases 
only  wherein  the  offender,  by  a  felonious  appropriation  of  the  animal,  would  have  com- 
mitted the  crime  of  petit  larceny.  He  further  urges  that  this  construction  of  the  statute 
is  strengthened  by  the  circumstance,  that  a  special  provision  is  made  by  the  statute  for 
improper  interference  with  strays,  in  c.  112,  s.  8.  We  do  not  concur  in  this  construction 
of  the  statute.  In  the  description  of  the  offence  thereby  created,  no  reference  is  made  to 
the  crime  of  larceny.  The  offence  consists  in  knowingly  altering  or  defacing  the  mark 
of,  or  in  knowingly  mis-marking  an  animal,  the  property  of  another,  with  intent  to  defraud. 
The  mere  straying  of  the  animal  from  the  owner's  premises  makes  no  change  of  property. 
The  animal  still  remains  his,  and  the  wrongful  act  is  not  less  calculated,  but  in  fact  more 
likely,  to  do  him  an  injury,  than  it  would  be  if  done  to  an  animal  in  his  immediate  possession. 
The  reference  in  the  statute  to  the  punishment  in  cases  of  petit  larceny  docs  not  affect  the 
description  of  the  offence,  more  than  it  would  have  affected  tiiat  deserijjtion,  if  tiie  reference 
had  been  to  the  punishment  in  eases  of  perjury  or  forgery,  or  of  any  other  crime.  It  only 
denounces  against  the  offence  previously  described,  tlie  same  penalty  by  which,  the  exist- 

•  Jng  law  is  inflicted  ujmn  a  conviction  of  petit  larceny.  The  construction  contended  for  is 
not  unwarranted  by  the  language  of  the  statute,  but  would  render  the  statute  itself  u\- 
operative  in  the  case,  which  mainly  rendered  it  necessary.  Nor  does  the  section  referred 
to  in  c.  112,  provide  for  an  offence  of  this  descri|)tion  in  cases  of  strays.  The  object  of 
the  legislature  in  tliat  chapter  is  to  point  out  a  mode  of  proceeding  in  those  cases,  where- 
by the  owner  may  be  enabled  to  regain  the  possession  of  his  pro[)erty  or  to  get  the  vahic 
thereof,  and  a  pro[)er  compensation  may  be  made  to  those,  who  shall  render  him  the  assist- 
ance for  this  purpose;  and,  in  furtherance  of  this  object,  the  eighth  section  imposes  a 
pecuniary  mulct  on  those,  who  may  take  up  or  use  the  stray,  otherwise  than  in  the  mode 
therein  directed. 

"  i'hc  inotifm  in  arrest  of  judgment  rests  on  two  grounds.  The  first  is,  for  that  the 
offence  is  not  described  in  the  language  of  the  .statute.  This  objection  api)lies  only  to  the 
first  count  oftho  iiidictmr'nt,  and  as  to  that  is  well  taken.  The  first  count  charges  that  the 
accused  did  alter  the  make  of  the  siiecp.  No  doubt  the  word  'make'  was  intended  to  be 
written  'mark,'  but  it  is  a  different  word,  having  a  diHercnl  signification,  and  cannot  lie 
brougbl  within  tlie  exception  oi'idi-in  sorians.  Ihil  tliis  mistake  is  not  in  the  second  count, 
which  charges  that  he  defaced  the  mark  of  the  sheej);  and  a  general  verdict  of  gtiilly 
havinir  b<;en  rendered,  judgment  will  not  he  arrested,  if  either  count  be  sutlicient  to  war- 
rant  it," 


MALICIOUS  MISCHIEF.  215 

alter  the  makc(l)  of  one  sheep,  the  property  of  W.  M'C,  knowingly, 
with  an  intent  to  defraud  the  said  W.  M'C,  contrary,  &c.,  and 
against,  &c,      {Conclude  as  in  book  1,  chap.  3). 

Second  count.     Defacing  inark. 

That  J.  D.,  &:c.,  on,  &c.,  at,  &c,,  knowingly  did  deface  the  mark 
of  a  sheep,  the  property  of  one  W.  M'C,  then  and  there,  with  an  in- 
tent to  defraud  the  said  W.  M'C,  contrary,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Entering  the  'premises  of  another  and  pulling  down  afence.{j) 

That  T.  C,  &c.,  on,  &c.,  at,  &c.,  into  a  certain  close  of  a  certain  A. 
M.,  situate  in  the  township  and  county  aforesaid,  in  and  upon  the 
possession  thereof  of  the  said  A.,  into  which  the  said  T.  had  not  legal 
right  of  entry,  did  enter,  and  ten  panel  of  fence  of  the  said  A.,  then 
and  there  standing  and  being,  then  and  there  did  pulldown,  take  and 
carry  away,  to  the  great  damage  of  the  said  A.,  and  against,  &c. 
(Conclude  as  in  book  1,  chap.  3). 

Destroying  two  lobster  cars  under  the  Mass.  statute.{Ic) 

That  A.  B.,  (tc,  on,  &c.,  at,  &c.,  did  wilfully,  maliciously  and  se- 
cretly, in  the  night  time,  destroy  and  injure  two  lobster  cars,  two  brass 
locks  attached  to  said  cars,  and  two  cables,  by  which  said  cars  were 
moored  and  fastened,  and  three  hundred  lobsters  contained  in  the 
cars  aforesaid,  all  being  the  property  of  one  F.  W.,  &.c. 

Removing  a  land-mark  under  the  Penn.  statute. {I) 

That  L.  S.,  &c.,  on,  6lc.,  at  &c.,  one  bounded  growing  oak  tree, 
being  one  of  the  land-marks  of  a  tract  of  plantable  land,  whereof  J.  B. 
was  then  and  there  seized  in  his  demesne  as  of  fee,  at  town- 

ship aforesaid,  and  within,  &c.,  secretly,  unjustly  and  without  the 
consent  or  knowledge  of  the  said  J;  B., did  cut  down  and  remove,  con- 
trary, &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Felling  timber  in  the  channel  of  a  pariicidar  creek,  in   a  particular 
county,  under  the  North  Carolina  statute. {m) 

That  H.  C,  &c.,  on,  &c.,  at,  &:c.,  unlawfully  and  maliciously  did  fell 
timber  in  the  channel  of  Hogan's  creek  in  the  County  of  Caswell, 
aforesaid,  and  did  then  and  there,  by  such  felling  of  timber  aforesaid,  on 


(j)  See  ante,  note  at  foot  of  p.  214. 

(j)  This  indictment  was  drawn  in  1779,  by  Mr.  John  D.  Sergeant,  then  attornej-gene- 
ral  of  Pennslyvania  ;  sec  "  Forcible  Entry  and  Detainer,"  ^osi. 

>k)  On  this  count,  framed  upon  the  Rev.  Stats,  e.  126,  s.  .39,  alleging-  that  the  defendant 
wilfully  destroyed  and  injured  a  cable  by  wlych  a  fish  car  was  moored  and  fastened,  proof 
that  he  wilfully,  &c.,  cut  off  such  cable  a  few  feet  from  one  end  thereof,  was  held  sufficient 
t.)  warrant  his  conviction;  Com.  v.  Soule,  2  Met.  21. 

(/)  This  indictment  is  taken  from  Reed's  Digest,  and  is  drawn  on  the  provincial  act  of 
1700;  1  Smith's  Laws  4. 

{in)  State  c.  Cobb,  1  Dcv.  &  Bat.  115. 


21G  offencf:s  against  property. 

the  twentieth  day  of  February  aforesaid,  obstruct  the  channel  of  the 
creek  aforesaid,  in  the  County  of  Caswell  aforesaid,  to  the  great  dam- 
age of  the  owners  of  the  land  on  said  creek,  contrary,  &.c.,  and  against, 
&c.    (^Conclude  as  in  book  1,  chap.  3). 

Breaking  into  house  and  frightening  a  pregnant  woman.{n) 

That  A.  B.,  &c.,  on,  &c,,  at,  &c.,  about  the  hour  of  ten  of  the  clock 
in  the  night  of  the  same  day,  with  force  and  arms  at  Lurgan  township 
in  the  county  aforesaid,  the  dwelling  house  of  J.  S.  there  situate,  un- 
lawfully, maliciously  and  secretly  did  break  and  enter,  with  intent 
to  disturb  the  peace  of  the  commonwealth ;  and  so  being  in  the  said 
dwelling  house,  unlawfully,  vehemently  and  turbulently  did  make  a 
great  noise,  in  disturbance  of  the  peace  of  the  commonwealth,  and 
greatly  misbehave  himself  in  the  said  dwelling  house, and  E.  S.  the  wife 
of-the  said  J.  greatly  did  frighten  and  alarm,  by  means  of  which  said 
fright  and  alarm,  she  the  said  E.,  being  then  and  there  pregnant,  did 
on  the  seventh  day  of  September,  in  the  year  aforesaid,  at  the  county 
atbresaid,  miscarry,  and  other  wrongs  to  the  said  E.  then  and  there 
did,  to  the  evil  exarfiple,  &c. 

Cutting  ropes  across  the  ferry. {p) 

That  H.  K.,  &c.,  on,  &c.,  at,  &c.,  did  maliciously  and  wantonly  cut 
two  ropes  stretched  across  the  river  Schuylkill  by  C.  P.,  the  occu- 

(n)  Com.  V.  Taylor,  5  Binn.  277.  "  But  supposingf,"  said  Tig-hlman  C.  J.,  "  the  indict- 
ment not  to  be  good  for  a  forcible  entry,  may  it  not  be  supported  on  other  grounds  ?  In 
the  case  of  the  Com.  v.  Teischcr,  1  Dall.  335,  judgment  was  given  against  the  defendant 
fox  '•maliciously,  wilfully  and  wickedly  killing  a  horse.''  'J'hese  are  the  words  of  the  in- 
dictment, and  it  seems  to  have  been  conceded  by  Mr.  Sergeant,  the  counsel  for  tiie  defend- 
ant, that  if  it  liad  been  laid  to  be  done  secretly,  the  indictment  would  have  been  good. 
Here  the  entering  of  tiie  house  is  laid  to  be  done  '  secretly,  maliciously,  and  with  an  at- 
tempt to  disturb  the  peace  of  the  commonwealth.^  I  do  not  find  any  precise  line  by  which 
indictments  for  malicious  mischief  are  separated  from  actions  of  trespass.  But  whether 
t!ic  malice,  the  mischief,  or  the  evil  example  is  considered,  the  case  before  us  seems  full  as 
strong  as  'I'eischer's  case.  There  is  another  principle  however,  upon  which  it  appears  to 
me  that  the  indictment  may  be  sujjported.  It  is  not  necessary  that  there  should  be  actuat 
force  or  violence  to  constitute  an  indictable  offence.  Acts  injurious  to  private  persons, 
wliich  tend  to  excite  violent  resentment,  and~thus  i)roduce  figiiting  and  distnibance  of  the 
peace  of  society,  are  themselves  indictable.  To  send  a  challenge  to  fight  a  duel  is  indict- 
able, because  it  tends  directly  towards  a  breach  of  the  peace.  liibels  fall  witliin  the  same 
reason.  A  libel  even  of  a  deceased  persnn,  is  an  offence  against  the  public,  because  it  may 
stir  up  the  passions  of  the  living  and  produce  acts  of  revenge.  Now  what  could  be  more 
likely  to  produce  violent  passion  and  a  disturbance  of  the  peace  of  society,  than  the  conduct 
of  the  defendant.  He  enters  secretly  after  nifrht  into  a  private  dwelling  house,  with  an  in- 
tent to  disturb  the  fjmily,  and  afler  entiring  makes  such  a  noise  as  to  terrify  the  mistress 
of  th(;  house  to  such  a  degree  as  to  cause  a  miscarriage.  Was  not  this  enough  to  produce 
some  act  of  desperate  violence  on  the  part  of  the  master  or  servants  of  the  family  ?  It  is 
objected  tiiat  the  kind  of  noise  is  not  described;  no  matter,  it  is  said  to  have  been  made 
vehemently  and  turbulently,  and  its  eflects  on  the  pregnant  woman  are  described.  In  the 
case  of  the  King  v.  Hood  (Sayer's  l{e|).  in  K.  U.  IGl),  the  court  refused  to  quash  an  in- 
dictment for  disturbing  a  family  by  violently  kicking  at  the  front  door  of  the  house  for 
the  S|)aco  of  two  liours.  It  is  impossilile  to  find  iireeedcnts  for  all  offences.  The  rnali- 
tiona  ingemiily  of  mankind  is  constantly  producing  new  inventions  in  the  art  of  disturbing 
their  nci(;hboins.  To  this  invention  must  be  o[>j)osed  general  principles,  calculated  to  meet 
and  punish  them.  I  am  ofo|)inion  that  the  conduet  of  the  defendant  falls  within  the  range  of 
established  principles,  and  that  the  judgment  of  the  court  below  should  be  reversed." 

(o)  Drawn  and  prosecuted  in  1773,  by  ,\Ir.  Andrew  Allen,  then  attorney. general  of 
Pennsylvania. 


FORCIBLE    ENTRY  AND   DETAINER.  217 

piers  of  the  ferry  over  Schuylkill,  commonly  called  the  upper  ferry, 
and  that  the  said  ropes  are  used  iu  drawing  boats  and  carrying  tra-^ ' 
vellers  over  the  same  river  and  ferry,  to  the  great  damage  of  the  said 
C.  P.,  and  against,  &c.,  and  against,  &,c.     {Conclude  as  in  book  1, 
chap.  3). 

Burning  a  7'ecord.{p) 

That  H.  E.,  &c.,  L.  K.,  &c.,  W.  H.,  &c.,  M.  H.,  &c.,and  G.  S.,  &c., 
on,  &c.,  at,  &c,,  a  certain  paper  writing,  containing  in  itself  a 
certificate  of  four  sufficient  housekeepers  of  the  neighbourhood, 
inhabiting  in  and  neat-  the  said  township,  and  with  their  names  sub^ 
scribed,  and  to  the  justices  of  the  peace  of  the  same  county  directed, 
that  they  the  said  housekeepers,  had  laid  out  a  road  and  highway  in 
the  said  township,  according  to  an  order  of  the  same  justices  in  their 
Quarter  Sessions  made  for  the  laying  out  the  same,  which  to  the  same 
justices  in  their  Quarter  Sessions  had  been  and  legally  made, certified 
and  returned,  and  of  record  affiled,  according  to  the  act  of  assembly 
in  such  case  made  and  provided,  to  wit,  at  the  City  of  Philadelphia^ 
in  the  said  comity,  unjustly  and  unlawfully  did  burn  and  destroy,  to 
the  manifest  contempt  of  the  good  laws  of  this  province,  to  the  evil 
example  of  all  others  in  the  like  case  oflending,  against,  &c.  (Ceii^ 
elude  as  in  book  1,  chap.  3.). 


CHAPTER  IX. 

!^0RCIBLE  ENTRY  AND  DETAINER. (dl) 

General  frame  of  indictment  at  common  laio. 

That  A.  B.,  late  of,  &c.,  C.  D.,  late  of,  &c.,  and  E.  F.,  late  of,  &C.» 
together  with  divers  other  persons,  to  the  number  of  six  or  more» 

(p)  Drawn  by  Tench  Francis  (attorney-general  of  Pennsylvania),  some  years  before  thd 
Revolution,  though  I  have  been  unable  to  fix  the  exact  date.  The  existence  of  this,  *nd 
of  several  kindred  precedents  under  the  head  of"  Malicious  Mischief,"  "Nuisances,"  &-c.^ 
shows  the  liberality  with  which,  the  common  law  was  applied  under  the  colonial  system. 

(rt)  Before  considering  the  pleading  in  forcible  entry  and  detainer,  the  general  charactei' 
of  the  offence  will  be  considered. 

(Forcible  entry  at  common  law).  The  assertion  of  right  to  lands  or  houses  by  force  haS 
always  been  discouraged  by  courts,  from  a  just  apprehension  of  the  tumults  to  which  such 
proceedings  may  lead.  Althougii,  therefore,  no  indictment  will  lie  for  a  mere  trespass^ 
accompanied  only  by  constructive  force,  yet  it  seems  to  be  established  that  an  entry  on 
land  or  into  a  liouse,  garden,  &c.,  or  a  church,  though  no  one  be  therein,  with  such  actual 
violence  as  amounts  to  an  unlawful  act,  or  public  breach  of  the  peace,  expressed  in  law  to 


218  OFFENCES  AGAINST  PROPERTY. 

whose  names  are  to  the  jurors  aforesaid  as  yet  unknown,  on,  &c., 
with  force  and  arms,  and   with  pistols,  staves  and  other  offensive 

be  "  with  force  and  arms  and  a  strong  hand,"  e.  g.  bringing  unusual  weapons,  threatening 
violence,  breaking  open  a  door,  or  violent  ejection  of  the  possessor  of  a  house,  is  an  offence 
indictable  at  common  law,  as  a  forcible  entry;  Langdon  v.  Potter,  3  Mass.  215 ;  Hardiug's 
case,  I  Greenl.  22;  Coin.  v.  Taylor,  5  Binn.  277;  Newton  v.  Harland,  1  Man.  &,  G.  644; 
Cruiser  c.  tState,  3  Harrison  206 ;  State  v.  Mills,  2  Dev.  420 ;  State  v,  Spierin,  1  Brevard 
llii;  though  the  statute  gives  other  remedies  to  the  parties  grieved,  viz.  restitution  and 
damages;  and  that  the  illegal  and  violent  maintenance  of  possession,  if  the  entry  was  un- 
lawful, is,  in  like  manner,  indictable  as  a  forcible  detainer;  Reg.  v,  Newlands,  4  Jur.  322, 
Littledale  J. ;  Le  Blanc  .1.,  R.  v.  Wilson  and  others,  8  T.  R.  363 ;  Ld.  Kenyon,  ib.  357 ;  Co. 
I/it.  257;  R.  V.  John  Wilson,  3  A.  &  E.  817;  S.  C.  5  N.  &  M.  164;  Com.  Dig.  tit.  For. 
cible  Entry,  (A.  1,  2,  B.  1).  An  entry,  though  by  one  person  only,  will  be  forcible 
if  either  by  act  or  threat  at  the  time  of  his  entry  he  gives  the  party  in  possession 
just  cause  to  fear  bodily  hurt  if  he  docs  not  give  way  :  and  the  same  circumstances  of  vio- 
lence or  terror  which  make  an  entry  forcible,  make  a  detainer  forcible  also.  A  detainer 
may  be  forcible  whether  the  entry  were  so  or  not;  Hawk.  b.  1,  c.  64;  Com.  Dig.  tit.  For. 
cible  Entry,  if  such  entry  was  unlawful;  R.  r.  Oakley,  4  J}.  &  Ad.  307;  1  N.  &  M. 
58.  Though  a  breach  of  the  peace  is  necessary  to  constitute  the  offence.  Com.  v.  Dudley,  10 
Mass.  4U3,  it  seems  that  no  circumstances  of  great  public  violence  or  terror  are  requisite; 
for  it  is  laid  down  "  that  an  entry  may  be  said  to  be  forcible,  not  only  in  resjject  of  violence 
actually  done  to  the  person  of  a  man,  as  by  beating  him  if  he  refuse  to  relinquish  his  pos- 
session, but  also  in  respect  of  any  violence  in  the  manner  of  entry,  as  by  breaking  open 
the  doors  of  a  house,  whether  any  person  be  in  it  at  the  same  time  or  not,  especially  if  it 
be  a  dwelling  house;"  Hawk.  b.  1,  c.  64,  s.  26;  State  v.  Pollock,  4  Iredell  305;  Bennett  v. 
State,  4  Rice  340.  The  offence  of  forcible  entry  at  common  law  is  punishai)le  by  fine  or 
imprisonment,  in  respect  to  the  injury  done  to  the  public  peace. 

{Fiircilile  entry  williin  the  stntvtes).  But  further  to  discourage  the  attempts  of  parties 
to  assert  their  claims  by  violence,  statutes  were  passed  in  England  in  very  early  times, 
which  have  been  substantially  re-enacted  in  several  of  the  states,  not  merely  to  annex  pun- 
ishment to  the  offence  of  entering  by  strong  hand  on  a  peaceable  possession,  but  to  grant 
restitution  to  the  paity  dispossessed,  on  the  conviction  of  the  offender.  After,  therefore,  the 
statute  5  Rich.  II.  s.  1,  c.  8,  had  declared  the  law  "  that  none  should  make  entry  into  lands 
and  tenements,  but  in  cases  where  entry  is  given  by  the  law,  nor  in  such  cases,  with  strong 
hand  nor  with  multitude  of  people,  (ten  making  a  'multitude;'  Co.  liit.  257  a  ;  R.  d.  Heine, 
cited  Stra.  195;  ex  parte  Davy,  6  Jur.  [)4'J,  Wightman  J.),  but  only  in  a  peaceable  and 
easy  manner,  on  pain  of  imprisonment  and  ransom,"  the  statute  15  Rich.  II.  c.  2,  gave  a 
remedy  by  summary  commitmetit  of  the  offender  till  fine  and  ransom;  and  by  8  Hen.  VI. 
c.  9,  this  provision  was  extended  to  cases  oi^  forcible  detainer,  and  justices  of  the  peace 
were  empowered  to  restore  the  premises  to  the  former  possessor,  where  the  force  had  been 
f^iund  by  a  jury  summoned  by  them;  Reg.  v.  Harland  and  others,  1  P.  &,  D.  33 ;  S.  C.  8 
A.  &,  E.  826 ;  2  M.  &,  Rob.  141  ;  R.  v.  Hake,  4  Man.  &  Ry.  483,  n.  The  inquisition  must 
set  forth  the  estate  possessed  by  the  party  in  the  property  disputed  ;  Rf^g.  v.  Bowser,  8  D. 
P.  C  128.  On  these  statutes  it  was  doubted  whether  any  but  a  freeholder  could  have  res- 
titution; and,  therefore,  the  21  Jas.  I.  c.  25,  a|)plicd  the  |)ower  conferred  by  the  former 
acts  to  the  restitution  of  possession  of  which  tenants  for  terms  of  years,  tenants  by  copy 
of  court  roll,  guardians  by  knight  service,  and  tenants  by  elegit,  statute  merchant,  or  sta- 
tute stojile,  had  been  tcireibly  deprived  ;  on  this  account  the  ])rosecutor's  interest  in  the 
premises  must  be  stated  in  the  indictment;  Ld.  Kenyon,  R.  v.  Wilson  and  others,  8  T. 
R.  357.  Under  these  acts,  therefore,  a  prosecutor  who  is  a  freeholder  or  leaseholder,  &c., 
may  have  restitution  on  conviction  of  the  i)arty  of  whose  disjjossession  lie  complains.  This 
restitution  may  be  awarded  by  the  Court  of  Quarter  Sessions,  as  justices  of  the  peace  are 
expressly  empowered  to  grant  it;  ujkI  in  this  res|)ect  they  act  as  judges  of  record;  3  B.  &. 
Ad.  6h8,  Littledale  J.,  arrd  have  greater  power  than  justices  of  Oyer  and  Terminer  and 
Gao!  I>(  livery,  who  cannot  grant  restitution,  but  can  only  punisii  the  offender;  Hawk.  b. 
1,  e.  64,  s.  61  ;  Bac.  Abr.  Forcible  Entry  (F). 

It  seems  to  liave  ixen  at  one  time  supposed  that  greater  force  was  necessary  to  sustain 
an  indictment  fur  forcible  entry  at  comnifju  law,  than  under  the  statutes;  R.  v.  Bake,  3 
Burr.  R.  1731  ;  but  the  observaliwis  of  Ld.  Kenyon  in  R.  v.  Wilson,  8  T.  R.  357,  seem  to 
negative  this  distinction,  and  to  place  both  jjroceedings  on  their  true  ground.  "  I  do  not 
know,"  Ha  id  he,  "that  it  has  ever  been  decided  that  it  is  necessary  to  allege  a  greater 
d(^grec  rjf  forc<;  in  an  indictment  at  common  law  for  a  forcible  entry,  than  in  an  indictment 
on  the  utalutes  ;  therefore  an  indiefmeril  at  common  law  charging  the  defendants  with 
having  entered  unlawfully  and  with  strong  hand,  is  good,"  and  Lc  Blanc  and  Lawrence 


FORCIBLE   EXTRV   AND  DETAIXER.  219 

weapons,  kc,  into  a  certain  messuage  or  garden(/;)  there  situate,  and 
tliei)(c)  and  there  being  in  the  peaceable  possession(f/)  of  G.  H.,  un- 
lawfully, violently  and  injuriously,  a?id  ivitk  a  stroiii^  hanc/{e)  did 
cuter;  and  that  the  said  A.  B.,  C.  D.  and  E.  F.,  together  with  the 
said  other  persons,  then  and  there,  with  force  and  arms  and  with  a 
strong  hand,  unlawfully,  violently,  forcibly  and  injuriously  did  expel, 
amove  and  put  out  the  said  G.  H.  from  the  possession  of  the  said 
messuage  and  garden,  and  the  said  G.  H.,  so  as  aforesaid  expelled, 
amoved  and  put  out  from  the  possession  of  the  same,  then  and  there, 
with  force  and  arms  and  with  a  strong  hand,  unlawfully,  violently, 
forcibly  and  injuriously  have  kept  out,(/)  from  the  day  and  year 
aforesaid,  until  the  taking  of  this  inquisition, (^)  and  still  do  keep  out, 


Js.,  added  lliat  the  words  with  strong  hand  mean  something  more  than  vi  et  armis,  or  a 
common  trespass,  viz.  the  dogree  of  violence  ainountiiiff  to  a  breach  of  the  public  peace, 
and  therefore  indictable  as  forcible  entry ;  sec  8  T.  R.  361,  303.  In  truth  there  is  no  good 
sense  in  any  distinction  as  to  the  degree  of  force  indictable  in  either  way;  but  in  neither 
case  will  a  mere  entry  by  an  open  door  or  window,  or  with  a  key,  however  procured,  as 
by  trick  and  contrivance,  suffice;  Com.  Dig.  Forcible  Entry  (A);  3  Hawk.  b.  I,  c.  64,  s. 
26;  nor  an  entry  which  the  possessor  is  induced  by  tlireats  of  destroying  his  cattle  or 
goods;  Hawk.  b.  1,  c.  64,  s.  25;  but  an  entry  effected  by  an  actual  breaking  of  a  dwelling 
house,  or  attended  by  an  actual  array  of  force,  will  be  indictable  in  cither  form.  The  true 
distinction  is,  that  on  an  indictment  at  common  law  the  prosecutor  needs  only  to  prove  a 
jieuceable  possession  at  the  time  of  the  ouster;  and  that  there,  as  he  alleges  no  title,  so  he 
can  have  no  restitution  :  while  in  an  indictment  on  the  statute  of  Richard,  his  interest, 
viz.  a  seisin  in  fee,  must  be  alleged;  on  the  statute  of  James,  the  existence  of  a  term  or 
other  tenancy ;  and  on  these  statutes,  restitution  will  be  granted;  I  Brevard  119;  1  Greenl, 
31.  It  must  be  observed,  however,  that  even  on  these  statutes,  proof  that  the  prosecutor 
holds  colourably  as  a  freeholder  or  leaseholder,  will  suffice;  and  that  the  court  will  not,  on 
the  trial,  enter  into  the  validity  of  an  adverse  claim  made  by  the  defendant,  which  he  ought 
to  assert,  not  by  force,  but  by  action.  Per  Vaughan  B.,  in  R.  v.  Williams,  IMonmouth 
Summer  assizes,  1828,  Dickinson's  Q.  S.  378;  confirmed  on  motion  for  a  new  trial;  and 
see  Jayne  v.  Price,  5  Taunt.  325;  I  Marsh.  68,  S.  C;  Dutton  v.  Tracy,  4  Conn.  79;  Res. 
V.  Shryber,  1  Dall.  68;  People  v.  Anthony,  4  Johns.  198;  People  v.  Rickert,  8  Cow.  226. 
(/>)  The  premises  must  be  described  with  certainty;  and  therefore  an  allegation  that  the 
del'endant  entered  a  tenement  will  not  suffice;  3  Leon.  102;  Co.  Lit.  6,  a.  The  indictment 
must  describe  the  premises  entered,  with  the  same  particularity  as  in  ejectment.  Thus, 
an  indictment  of  forcible  entry  into  a  messuage,  tenement  and  tract  of  land,  without  men- 
tioning the  number  of  acres,  was  held  bad  after  conviction;  M'Nair  et  al.  v.  Rempublicam, 
4  Yeates  326.  Wheic  the  words  were,  "a  certain  messuage  with  the  appurtenances,  for 
a  term  of  years  in  the  district  of  Spaitanburgh,"  it  was  adjudged  that  tiie  place  where 
was  not  described  with  sufficient  legal  certainty  ;  State  v.  Walker  and  Davidson,  Brev. 
MSS.;  Wh.  C.  L.  443.  It  is  sufficient  to  describe  the  premises  as  "a  certain  close  of  two 
acres  of  arable  land,  situate  in  S.  township,  in  tiie  county  of  H.,  being  a  part  of  a  large 
tract  of  land  adjoining  lands  of  A.  and  B.;"  Dean  et  al.  v.  Com.,  3  S.  &-  R.  418. 

(c)  See  2  Chit.  C.  L.  22U,  222  ;  2  Q.  B.  Rep.  406. 

(d)  Possession  is  all  that  need  be  laid  at  common  law;  Burd  v.  Com.,  6  S.  &  R.  252; 
Res.  V.  Campbell,  1  Dall.  354;  though  upon  this  averment  alone  restitution  cannot  be  award- 
ed, ante,  p.  218;  Wii.  C.  L.  442.  Under  the  statutes,  however,  it  is  necessary  that  either 
a  freehold  or  leasehold  estate  should  be  laid,  as  will  be  presently  seen. 

(e)  These  words  are  vital;  greater  force  must  be  averred  than  is  expressed  by  the  words 
vi  et  annis.  The  trespass  must  involve  a  breach  of  the  peace,  or  directly  hmd  to  it,  as 
being  done  in  the  presence  of  the  prosecutor,  to  his  terror  or  against  his  will ;  State  v.  Mills, 
2  Dev.  420;  but  see  Harding's  case,  1  Greenl.  22. 

(/■)  Tlic  same  description  and  degree  of  force  is  necessary  to  constitute  a  forcible  de- 
tainer,  as  a  forcible  entry;  Dalt.  126;  Hawk.  b.  1,  c.  64,  s.  39. 

(0-)  No  indictment  can  warrant  an  award  of  restitution,  unless  it  alleges  that  the  wrong- 
doer both  ousted  tiie  party  grieved,  and  continued  in  possession  at  the  time  of  finding  the 
indictment;  for  it  would  be  a  repugnancy  to  award  restitution  to  one  who  never  was  in 
possession,  and  vain  to  award  it  to  one  who  does  not  appear  to  have  lost  it;  Hawk.  b.  1, 
c.  64,  s.  41. 


220  OFFENCES  AGAINST  PROPERTY. 

to  the  great  damage  of  the  said  G.  H.,  and  against,  &c.  {Conclude 
as  in  book  \,  chap.  3). 

Anotker  form  of  same. (h) 

That  A.  B.,  &c.,  on,  &c.,  at,  &.c.,  with  an  axe  and  augur,  unlaw- 
fully, violently,  forcibly,  injuriously  and  with  a  strong  hand,  did  enter 
into  the  dwelling  house  of  J.  C,  in  said  and  in  his  actual  and 

exclusive  possession  and  occupation  with  his  family,  and  the  said  A. 
B.  did  then  and  there  unlawfully,  violently,  forcibly,  injuriously  and 
with  a  strong  hand,  bore  into  said  dwelling  house  with  said  augur, 
and  cut  aw  ay  part  of  said  house,  and  stove  in  the  doors  and  windows 

(A)  This  count  was  sustained,  in  Harding's,  case,  1  Greenl.  22. 

"  If  tlie  facts  charged,"  said  Preble  J.,  "  do  not  cotistilute  an  indictable  offence  at  comraon 
law,  no  sentence  can  be  pronounced  upon  tlie  defendant. 

"  Tlie  earlier  authorities  do  sanction  the  doctrine,  that  at  common  law,  if  a  man  had  a 
right  of  entry  in  him,  lie  was  permitted  to  enter  with  force  and  arms,  when  such  force 
was  necessary  to  regain  his  possession,  (Hawk.  P.  C.  c.  64,  and  the  authorities  there 
cited).  To  remedy  the  evils  arising  from  this  supposed  defect  in  the  common  law,  it  was 
provided  by  statute  5"  Rich.  II.  c.  7,  that,  'none  should  make  any  entry  into  any  lands 
or  tenements  but  in  cases  where  entry  is  given  by  the  law;  and  in  such  cases,  not  with 
strong  hand  nor  with  multitude  of  people  but  only  in  a  peaceable  and  easy  manner.'  The 
authorities  are  numerous  to  show  that  for  a  trespass, — a  mere  civil  injury,  unaccompanied 
with  actual  force  or  violence,  though  alleged  to  have  been  committed  with  force  and  arms — 
an  indictment  will  not  lie.  But  in  Rex  v.  Dathurst,  Say.  R.  305,  the  court  held,  that 
forcibly  eutiy  into  a  m(in''s  ihcrlling  hovse  was  an  indictable  offence  at  common  law,  though 
the  force  was  alleged  only  in  the  formal  words  vi  et  armis.  In  Rex  v.  Bake,  3  Burr.  1731, 
it  was  held,  that  for  a  forcible  entry  an  indictment  will  lie  at  common  law :  but  actual 
force  must  appear  on  the  face  of  the  indictment,  and  is  not  to  be  imi>lied  from  the  allega- 
tion, that  the  act  was  done  vi  et  armis.  In  the  King  v.  Wilson,  8  D.  &  E.  357,  an  in- 
dictment at  common  law  charging  the  defendant  with  having  mitavvfiiljy  and  witit  a  strong 
hand  entered  the  prosecutor's  milt  and  expelled  him  from  the  possession,  was  held  good. 
In  this  latter  case,  Lord  Kenyon  reniarks,  'God  forbid  these  acts,  if  proved,  should  not  be 
an  indictable  offence; — the  peace  of  the  whole  country  would  be  endangered,  if  it  were  not 
90.'  The  case  at  bar  is  a  much  stronger,  one,  tlian  either  of  those  cited.  The  peace  of  the 
state  would  indeed  be  jeopardized,  if  any  lawless  individual  destitute  of  property  might, 
without  being  liable  to  be  indicted  and  punished,  unlawfully,  violently  and  with  a  strong 
hand,  armed  with  an  axe  and  augur,  furcihiy  enter  a  man''s  dwelling  house,  then  in  his 
actual,  exclusive  possession  and  occupancy  with  his  wife  and  children — slave  in  the  doors 
and  windows,  cutting  and  destroying,  arid  putting  the  women  and  children  in  fear  of  their 
lives. 

"  The  second  objection,  that  no  seisin  is  alleged,  docs  not  apply  to  indictments  for  for- 
cible entries  at  common  law.  Under  the  statute  of  New  York  against  forcible  entry,  the 
party  aggrievcid  has  restitution  and  damages;  and  hence  it  is  neeessaiy  that  the  indictment 
should  state  the  interest  of  the  prosecutor.  The  People  v.  Shaw,  cited  by  the  defendant's 
counsel,  and  the  People  v.  King,  2  (Raines  98,  are  cases  upon  the  statute  of  tluit  state.  In 
Rex  w.  Bake,  Mr.  Justice  Wilniot  remarks:  'No  doubt  indictments  will  lie  at  common 
law  for  a  forcible  entry,  though  they  are  generally  brought  on  the  ads  of  parliament.  On 
the  acts  of  parliament  it  is  necessary  to  state  the  nature  of  the  estate,  because  there  must 
be  restitution,  but  they  may  be  brought  at  common  law.'  In  the  King  v.  Wilson,  Lord 
Kenyon  says  :  '  No  doubt  the  offence  of  forcible  entry  is  indictable  at  cornmon  law,  though 
the  statutes  give  otJier  remedies  to  the  party  aggrieved,  restitution  and  damages;  and 
therefore  in  an  indictment  on  the  statutes,  it  is  necessary  to  state  the  interest  of  the  prose- 
cutor.' Our  statute  contains  no  such  provision,  and  gives  no  remedy  by  indictment.  It 
simply  provides  a  [)rocess  to  obtain  restitution,  Icavinir  the  parlies,  the  one  to  his  action  for 
damages,  the  other  to  his  liability  tr)  he  indicted  and  punished  at  common  law. 

"With  respect  to  the  third  objection,  it  is  allcfred  in  the  indictment  that  the  house  was 
Vales'  dwelling  house,  in  his  actual  and  exclusive  possession  and  occupation  uiith  his  family, 
v^rni  thai  the  defendant  unlawfully  entered,  «fee.  On  the  whole  we  think  the  indictmei.t 
contains  suHifricnl  inatter  to  warrant  a  jud<;uicnt  upon  the  verdict  which  has  been  found 
agai/iHl  the  dcltTidant,  and  liie  motion  in  arrest  is  accorduigly  ovcriuled." 


FORCIBLE  ENTRY  AND  DETAINER.  221 

tliereof  with  said  axe,  said  J.  C.'s  wife  and  children  being  in  said 
house,  thereby  putting  them  in  fear  of  their  hves,  &c. 

Against  one,  <^-c.,   at  cummon  hnc,  icilh   no  averment  of  either  lease- 
hold  or  freehold  possession  in  the  prosecutor. [i) 

That  I.  K.,  at,  &.C.,  on,  &c.,  unlawfully,  violently,  forcibly  and  in- 
juriously did  enter  into  a  certain  lot  of  ground  and  the  stable  thereon 
erected,  situated  between  North  alley  and  South  alley,  and  between 
Delaware  Fifth  and  Delaware  Sixth  streets  in  the  said  city,  the  said 
lot  of  ground  being  forty-nine  feet  north  and  south  and  sixteen  feet 
or  thereabouts  east  and  west  in  diinension,  then  and  there  being  in 
the  peaceable  possession  of  one  T.  L.,  and  that  the  said  I.  K.  then 
and  there  with  force  and  arms  and  with  a  strong  hand,  unlawfully, 
violently,  forcibly  and  injuriously  did  expel,  remove  aud  put  out  the 
said  T.  L.  from  the  possession  of  the  said  premises,  and  the  said  T. 
L.  so  as  aforesaid  expelled,  amoved  and  put  out  from  the  possession 
of  the  same,  with  force  and  arms,  &c.,  and  with  a  strong  hand,  un- 
lawfully, violently,  forcibly  and  injuriously  has  kept  out,  from  the 
day  and  year  aforesaid  until  the  taking  of  this  inquisition,  and  still 
doth  keep  out,  and  other  wrongs  to  the  said  T.  L.  then  and  there 
did,  to  the  great  damage  of  the  said  T.  L.,  to  the  evil  example  of  all 
others  in  the  hke  case  offending,  contrary,  &c..  and  against,  &c.  [Con- 
clude as  in  book  1,  chap.  3). 

Forcible  entry,  Sfc,  into  a  freehold,  on  stat.  5  Pdch.  II.  c.  S.{j) 

That  one  J.  N.,  &c.,  at,  &c.,  on,  &c.,  was  seized (A^)  in  his  demesne 
as  of  fee,  of  and  in  a  certain  messuage,  with  the  appurtenances  there 
situate  and  being,  and  the  said  J.  N.,  bejng  so  seized  thereof  as 
aforesaid,  J.  S.,  late  of  the  parish  aforesaid,  in  the  county  aforesaid, 
labourer,  afterwards,  to  wit,  on  the  day  and  year  last  aforesaid,  in  the 
parish  aforesaid,  in  the  county  aforesaid,  into  the  said  messuage  and 
appurtenances  aforesaid,  with  force  and  arms  and  with  strong  hand, 
unlawfully  did  enter,  and  the  said  J.  N.,  from  the  peaceable  posses- 
sion of  the  said  messuage  with  the  appurtenances  aforesaid,  then  and 
there  with  force  of  arms  and  with  strong  hand,  unlawfully  did  expel 
and  put  out,  and  the  said  J.  N.  from  the  possession  thereof  so  as 
aforesaid  with  force  and  arms  and  with  strong  hand,  being  unlawfully 
expelled  and  put  out,  the  said  J.  S.  from  the  aforesaid  third  day  of 
August,  in  the  year  aforesaid,  until  the  day  of  the  taking  of  this  in- 
quisition, from  the  possession  of  the  said  messuage,  with  the  appur- 
tenances aforesaid,  with  force  and  arms  and  with  strong  hand,  un- 
lawfully and  injuriously  then  and  there  did  keep  out,  and  still  doth 
keep  out,  to  the  great  damage  of  the  said  J.  N.,  against,  &c.,  and 
against,  &c.      {Conclude  as  in  book  1,  chap.  3). 

(i)  Com.  V.  Kinsman,  Sup.  Ct.  Pa.  Dec.  T.  1830,  No.  13.     Sentence  was  entered  on  this 
indictment  aJter  a  plea  of  guilty. 

(;■)  Arclibold's  C.  P.  5th  Am.  ed.  709. 

iji)  See  Fitch  ».  Rcmpubhcam.S  Ycatcs  49,S.C.;  1Dj11.212;  Rcsp.r.Shryber,  1  Dall.  68. 

]9* 


^•^2  OFFE.VCES  AGAINST  PROPERTY. 

Forcible  entry  into  a  leasehold,  on  stat.  21  Jac.  I.  c.  15.(1) 

(Siwie  as  in  last  precedent,  adapting  the  form,  however,  to  a  term  of 
years,  as  thus) : 

That  J.  N.,  &c  ,  on,  &c.,  at,  &c.,  was  possessed  of  a  certain  mes- 
suage with  the  appurtenances,  there  situate  and  being,  for  a  certain 
term  of  years,  whereof  divers,  to  wit,  ten  years  were  then  to  come, 
and  are  still  unexpired,  and  the  said  J.  N.  being  so  possessed  thereof, 
&c.  {as.  hi  last  precedeni). 

Fb)xible  detainer  on  stat.  8  Hen.  VIII.  c.  9,  or  21  Jac.  I.  c.  51. (m) 

(T/ie  same  as  in  the  last  two  precedents  respectively,  to  the  end  of  the 
statement  of  the  seisin  or  possession,  then  proceed  thus}: 

And  the  said  J.  N.  being  so  seised  (or  possessed)  thereof,  J.  S.,  late, 
&c.,  into,  the  said  messuage  with  the  appurtenances  aforesaid,  unlaw- 
fully did  enter,  and  the  said  J.  N.  from  the  peaceable  possession  of 
the  said  messuage  with  the  appurtenances  aforesaid,  then  and  there 
unlawfully  did  expel  and  put  out,  and  the  said  J.  N.  from  the  posses- 
sion thereof,  so  as  aforesaid,  being  unlawfully  expelled  and  put  out, 
the  said  J.  S.  from  the  said  third  day  of  August,  in  the  year  aforesaid, 
until  the  day  af  the  taking  of  this  inquisition,  from  the  possession  of 
the  said  messuage  with  th,e  appurtenances  aforesaid,  with  force  and 
arms  and  with  strong  hand,  unlawfully  and  injuriously  then  and 
there  did  keep  out,  and  the  said  messuage  with  the  appurtenances 
and  the  possession  thereof,  then  and  there  ludawfully  and  forcibly 
did  hold,  and  still  doth  hold  from  the  said  J.  N.,  to  the  great  damage 
of  the  said  J.  N.,  against,  &c.,  and  against,  &g.  (Conclude  as  in 
book  1,  chap.  3). 

Forcible  entry.     Fortn  in  use  in  Philadelphia.     First  count,  at  common 
law.(n) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  together  with  divers  other  evil 
disposed  persons,  to  the  number  of  foiu'  or  more,  whose  names  are  to 
the  jurors  aforesaid  as  yet  unknown,  with  force  and  arms  and  with 
a  strong  hand,  unlawfully,  violently,  forcibly  and  injuriously  did  en- 
ter into  (describing premises),  then  and  there  being  in  the  peaceable 
possession  of  C.  D.,  and  that  tlie  said  A.  B.,  with  the  said  evil  dis- 
posed persons,  then  and  there,  with  force  and  arms  and  with  a  strong 
hand  unlawlully,  violently,  foicibly  and  injuriously  did  expel,  ren;ove 
and  put  out  the  said  C.  D.  from  the  possession  of  the  said  premises, 
with  the  appurtenances;  and  the  said  C.  D.  so  as  aforesaid  expelled, 
rtmoved  and  fmt  out  from  the  possession  of  the  same,  with  force  and 
aims  and  with  a  strong  hand,  nnlawfully,  violently,  forcibly  and  in- 
juriously have  kept  out  from  the  st'me,  from  the  day  and  year  afore- 
said until  the  taking  of  this  inquisition,  and  still  do  keep  out ;  and 
other  wrongs  to  tlie  said  C.  D.  then  and  there  did,  to  the  great  dam- 

(0  ArdiUld'sC.  P.  5tli  Am.  (<1.  712.     See  Pa.  v.  Elder,  1  Sijiitii's  Laws  3. 
(to)  Ai(lilm)(J'st;.  P.,Otli  All),  id.  712. 

(n)  TI.JH  fr.irii  ir.cluc'ts  u  ttuiil  nl  ctii  n;tii  iaw,  and  a  count  on  caclj  of  llic  statutes 
iTJd.tioi.fd  Hhle,  p.  218. 


FORCIBLE  E\TRY  AND  DETAINER.  223 

age  of  the  said  C.  D.,  contrary,  &.C.,  and  against,  &c.  [Conclude  us 
in  book  1,  chap.  3). 

Second  count.    Entry  upon  freehold. 

That  the  said  C.  D.,  on,  &c,,  at,  &c.,  was  seized  in  his  demesne  as 
of  fee,  of  and  in  the  messuage,  tenement  and  premises  hereinbefore 
specified  and  described,  with  the  appurtenances  thereto  ;  and  the  said 
C.  D.  being  so  seized  thereof  as  aforesaid,  the  said  A.  B.  afterwards, 
to  wit,  on  the  day  and  year  aforesaid,  at  the  county  and  within  the 
jurisdiction  aforesaid,  into  the  said  messuage,  tenement,  premises  and 
appurtenances  aforesaid,  with  force  and  arms  and  with  a  strong  hand, 
unlawfully  did  enter,  and  the  said  C.  D.  from  the  peaceable  possession 
of  the  said  messuage,  tenement,  premises  and  appurtenances  as  afore- 
said, then  and  there  with  force  and  arms  and  with  strong  hand,  un- 
lawfully did  expel  and  put  out;  and  the  said  C.  D.  from  the  posses- 
sion thereof  so  as  aforesaid,  with  force  and  arms  and  with  strong 
hand  being  unlawfully  expelled  and  put  out,  from  the  day  and  year 
aforesaid  until  the  day  of  the  taking  of  this  inquisition,  from  the  pos- 
session of'the  said  messuage,  tenement,  premises  and  appurtenances, 
with  force  and  arms  and  with  strong  liand,  unlawfully  and  injuriously 
then  and  there  did  keep  out  and  still  do  keep  out,  to  the  great  dam- 
age of  the  said  C.  D.,  contrary,  &c.,  and  against,  &c.  [Conclude  as 
in  book  1,  chap.  3). 

Third  count.     Entry  upon  leasehold. 

That  the  said  C.  D.,  on,  &c.,  at,  &c.,  was  possessed  of  the  said 
messuage,  tenement,  premises  and  appurtenances,  as  hereinbefore 
described,  for  a  certain  term  of  years,  whereof  divers,  to  wit,  two 
years,  were  then  to  come,  and  are  still  unexpired ;  and  that  the  said 

C.  D.  being  so  possessed  thereof,  the  said  A.  B.  afterwards,  to  wit, 
on  the  day  and  year  aforesaid,  at  the  county  and  within  the  jurisdic- 
tion aforesaid,  into  the  said  messuage,  tenement,  premises  and  appur- 
tenances, as  aforesaid,  with  force  and  arms  and  with  a  strong  hand, 
unlawfully  did  enter,  and  the  said  C.  D.  from  the  peaceable  posses- 
sion of  the  said  messuage,  tenement,  premises  and  appurtenances  as 
aforesaid,  then  and  there  with  force  and  arms  and  with  a  strong 
hand,  unlawfully  did  expel  and  put  out ;  and  the  said  C,  D.  from  the 
possession  thereof  so  as  aforesaid,  with  force  and  arms  and  with 
strong  hand,  being  unlawfully  expelled  and  put  out,  from  the  day 
and  year  aforesaid  until  the  taking  of  this  inquisition,  from  the  pos- 
session of  the  said  messuage,  tenement,  premises  and  appurtenances, 
with  force  and  arms  and  with  strong  hand,  unlawfully  and  injuriously 
then  and  there  did  keep  out,  and  still  do  keep  out,  to  the  great  dam- 
age of  the  said  C.  D.,  contrary,  &c.,  and  against,  &c.  [Conclude  us 
in  book  1,  chap.  3). 

For  breaking  and  entering  a  close  and  cutting  down  a  tree,  under  the 
Pennsylvania  act. 

That  D.  B.  and  J.  T.,  &c.,  on,  6rc.,  at,  &,c.,  into  a  certain  close  of 
the  honourable  J.  H.  Esq.,  situate  in  the  township  of  Lancaster,  and 
in  and  upon  the  possession  of  the  said  J.  H.  Esq.,  into  which  the  said 

D.  B.  and  J.  T.  had  not  the  legal  right  o(  entry,  did  enter,  and  one 


224  OFFENCES  AGAINST   I'ROPERTY. 

oak  tree  of  the  said  J.  H.  then  and  there  growing,  then  and  there 
did  cut,  contrary,  &.C.,  and  against,  &.c.  {Conclude  as  in  book  1, 
chap.  3). 


CHAPTER  X. 

CHEATS. 

1.  CHEATS  AT  COMMON  LAW. 

2.  FALSE   PERSONATION   OF  BAIL. 

3.  SECRETING  GOODS  AVITH  INTENT  TO  DEFRAUD  CREDITORS. 

4.  FRAUDULENT  INSOLVENCY  IN  FENNSYLVAMA. 

5.  VIOLATION  OF  FACTOR   LAW. 

6.  OBTAINING  GOODS  BY  FALSE  PRETENCES. 


I.    CHEATS  AT  COMMON  LAW. 

Selling  b^  false  weight  or  measure.{a) 

That  A.  B.,  late  of,  &c.,  on,  &c.,  and  from  thence  until  the  taking 
of  this  inquisition,  did  use  and  exercise  llie  trade  and  business  of  a 

(n)  Dickinson's  Q.  S.  Gtli  cd.  327. 

{Cheats  at  common  law  generally).  A  mere  private  imposition  short  of  felony,  and  ef- 
fected by  a  "  naked  lie,"  witliout  tlie  association  of  at  tful  device  or  false  token,  voucher, 
order,  &.C.,  is  not  indictable  as  a  cheat  at  common  law,  unless  il  is  public  in  its  nature, 
and  calculated  to  defraud  numbers,  or  to  injure  the  g^ovcrnmcnt  or  the  [)ublic  in  general ; 
J  East  V.  C.  817,  &21  ;  Dickinson's  Q.  S.  2!)U;  and  see  10  A.  &  E.  37;  2  Per.  &,  Dav.  334. 
]^er  Ld.  Dcnman.  Forcible  illustrations  of  the  distinction  between  a  cheat  which  becomes 
indictable  or  otherwise  as  it  acquires  or  loses  generality,  are  found  in  VVeierbach  v.  Trone, 
2  VV.  &-  S.  40i;  and  Com.  v.  Warren,  6  Mass.  72.  Puttintr  a  stone  in  a  single  pound  of 
butter,  for  the  purpose  of  cheating  as  single,  is  not  an  indictable  offence:  putting  a  scries 
of  stones  in  a  series  of  pounds  of  l)utter,  for  the  pur|)ose  of  defrauding  the  public,  is.  For 
in  other  cases  prudence  and  caution  would  su|)|)ly  sullicicnt  security  ;  1  Hawk.  c.  71,  s.  2  ; 
2  East  P.  C.  H18;  H.  v.  (Jibbs,  1  East  l{.  173;  but  the  selling  by  false  weights  and  mea- 
nires,  though  to  on(;  person  only,  or  producing  false  tokens,  or  taking  other  like  methods 
lo  cheat,  which  cannot  be  guarded  against  by  ordinary  care,  were  always  held  indictable 
olfenccs;  R.  v.  Young,  3  T.  li.  98,  per  HuUcr  J.;  R.  r.  Wheally,  1  Pla.  R.  273;  10  A.  &, 
K.  37  ;  2  Hurr.  ]  12.5,  S.  C. ;  State  v.  Patillo,  4  [lawks  348  ;  Com.  ?>.  Warren,  6  Mass.  72  : 
Com.  V.  Morse,  2  Mass.  138;  Hiel  «.  State,  I  Yeig.  70;  People  v.  Stone,  9  Wend.  182;  State 
i;.  .Scroll,  1  Rich.  244;  People  v.  Miller,  14  .Johns.  37;  States.  Wilson,  2  Rep.  Con.  Ct.  135; 
People  V.  fiabcock,  7  Johns.  201 ;  State  v.  Vauglnm,  1  Bay  2i-2 ;  Cross  v.  Peters,  1  GrecnI. 
3tj7  ;  Com.  v.  Specr,  2  Va.  Cases  05;  Lambert  v.  People,  9  Cow.  578;  Com.  v,  Plearsay,  1 
Muss.  137. 

Such  arc  the  following  among  other  frauds.  Those  affecting  the  administration  of  i)ub- 
lic  justice,  as  Cf)unterfeiting  a  creditor's  authority  to  discharge  his  debtor  from  prison 
(though,  if  genuine,  it  would  be  good),  whereby  his  liberation  was  effected;  R.  v.  Faweitt, 
2  Eahl  P.  C.  820,  802;' or  endangering  the  public  health  by  selling  unwholesonie  provi- 
«ion'<,  unfit  for  the  food  of  man,  whclher  to  the  public  generally,  R.  v.  'IVeevc,  i2  East  P. 
C.  ti~l,  or  under  a  coiilracl  with  government  for  supplies  to  particular  bodies,  as  foreign 


CHEATS.  225 

grocer,  and  during  that  time  did  deal  in  the  buying  and  selHng  by- 
weight  of  (tea,  &c,)  and  of  divers  other  goods,  wares  and  merchan- 
dises, to  wit,  at,  &c.,  aforesaid ;  and  that  the  said  A.  B.,  contriving  and 
fraudulently  intending  to  cheat  and  defraud  the  people  of  the  said 
state,  whilst  he  used  and  exercised  his  said  trade  and  business,  to  wit, 
&c.,  and  in  divers  other  days  and  times  between  that  day  and  the 
day  of  taking  of  this  inquisition,  at,  &.C.,  did  knowingly,  wilfully, 
falsely,  fraudulently  and  deceitfully  keep  in  a  certain  sliop  there, 
wherein  he  the  said  A.  B.  did  so  as  aforesaid  carry  on  his  said  trade, 
a  certain  false  pair  of  scales  for  the  weighing  of  goods,  wares  and  mer- 
chandises by  him  sold  in  the  way  of  his  said  trade,  which  said  scales 

prisoners  of  war  under  the  king's  protection,  ib.;  or  the  military  asylum  at  Chelsea;  R.  r. 
Dixon,  2  Campb.  l'-2;  3  M.  &  S.  11,  S.  C.  So  in  Pennsylvania,  an  indictment  was  sus- 
tained against  a  baker  in  the  employ  of  the  United  States'  army,  in  baking  two  hundred 
and  nineteen  barrels  of  bread,  and  marking  tliem  as  weighing  eighty-eight  pounds  each, 
when,  in  fact,  they  severally  weighed  but  sixty-eight  pounds;  Resp.  v.  Powell,  I  Dall.  47 ; 
see  2  Rep.  Con.  C't.  139.  Frauds  calculated  to  affect  all  persons,  as  selling  by  false  weights 
and  measures  ;  R.  v.  Wljeatly,  1  Bla.  R.  273  ;  R.  v.  Young,  3  T.  R.  98  ;  2  Burr.  1 125,  S.  C, 
overruling  R.  v.  Wood,  1  Sess.  Ca.  217;  counterfeiting  tokens  of  public  autiienlicity,  as 
the  alnager's  seal  on  cloth,  while  those  duties  remained  unrepealed  by  11  and  12  VVm.  III. 
c.  20,  s.  2,  R.  V.  Edwards,  Treinaiue's  P.  C.  103 ;  playing  with  false  dice,  R.  v.  Leeser,  Cro. 
Jac.  497;  obtaining  money  from  a  soldier  on  a  false  pretence  of  having  a  power  to  dis- 
charge him,  Serlested's  case.  Latch  202 ;  or  getting  the  king's  bounty  by  enlisting  as  a 
soldier,  being  an  apprenticCj  liable  to  be  retaken  by  a  master,  R.  v.  .Joseph  Jones,  2  East 
P.  C.  822;  1  Leach  174,  S.  C.  In  Virginia  the  rule  has  been  pressed  much  further,  it  hav- 
ing  been  held  that,  the  procuring  goods,  &c.,  by  means  of  a  note  purporting  to  be  a  bank 
note  of  the  Ohio  Exporting  and  Importing  Company,  tiiere  being  no  such  bank  or  com- 
pany, is  a  cheat  punishable  by  indictment  at  common  law,  if  the  defendant  knew  that  it 
was  such  a  false  note.  It  is  necessary  in  such  case  to  aver  the  scienter  in  the  indictment; 
Com.  V.  Speer,  2  Va.  Cases  65 ;  but  see  State  v.  Patillo,  4  Hawks  348.  So,  where  the  de- 
fendants purchased  goods  from  the  prosecutor's  clerk,  and  gave  in  payment  an  instrument 
purporting  to  be  a  five  dollar  bill  of  the  Bank  of  Tallahasse,  in  Florida,  the  blanks  of 
which  were  filled  up,  except  those  opposite  the  words  "  cashier"  and  "  president ;"  but  in 
those  blanks  an  illegible  scrawl  was  written,  vi'hich,  on  careless  inspection,  might  have 
been  mistaken  for  the  names  of  those  officers,  and  the  defendants  knew,  before  they  passed 
the  instrument,  that  it  was  worthless  ;  it  was  held,  in  South  Carolina,  that  they  were  guilty, 
at  common  law,  of  cheating  by  a  false  pretence  ;  State  v.  Stroll  and  Carr,  1  Rich.  244. 

The  following  are  some  instances  of  frauds  on  individuals,  which  not  being  effected  in 
the  course  of  general  practice,  or  by  means  generally  calculated  to  injure  the  public,  are 
not  indictable  at  common  law;  selling  a  smaller  as  and  for  a  larger  quantity  of  an  article, 
if  without  using  false  weights  or  measures;  this  being  a  deception  which  could  not  have 
taken  effect  but  for  the  buyer's  carelessness  in  accepting  without  measure,  R.  v.  Wheatly, 
2  Burr.  1125  (the  beer  case);  Cowp.  324;  East  P.  C.  817,  819;  or  inducing  an  illiterate 
person  to  sign  a  deed  by  reading  it  to  him  falsely ;  State  n.  Justice,  2  Dev.  199.  The  like 
where  a  miller  who  had  received  good  barley  to  grind,  delivered  in  return  meal  of  musty 
and  unwholesome  barley,  or  of  barley  mixed  with  other  grain,  but  not  for  the  food  of  man, 
and  the  mill  not  being  a  soke  mill,  to  which  certain  residents  were  obliged  to  resort  to  grind 
their  corn;  R.  v.  Haynes,  4  M.  &  S.  220  ;  see  6  East  133.  So  as  to  obtaining  money  of 
A.  by  pretending  to  come  by  command  of  B.  to  receive  money,  R.  v.  Jones,  2  Ld.  Raym. 
1013;  Salk.  379;  6  Mod.  105,  S.  C. ;  see  2  East  P.  C.  818;  1  Hawk.  c.  71,  s.  2;  or  detain- 
ing part  of  corn  sent  to  be  ground;  Channel's  case,  Stra.  793.  On  the  .same  principle,  it  is 
not  an  indictable  offence  to  get  possession  of  a  note,  under  pretence  of  wishing  to  look  at 
it,  and  carrying  it  away  and  refusing  to  return  it.  People  v.  Miller,  14  Johns.  37;  nor  to 
obtain  money  by  falsely  representing  a  spurious  note  of  hand  to  be  genuine.  State  v.  Stroll, 
1  Rich.  244;  State  v.  Patillo,  4  Hawks  348;  see  Com.  v.  Spccr,  2  Va.  Cases  65  ;  nor  to  pre- 
tend to  have  money  ready  to  pay  a  debt,  and  thereby  obtaining  a  receipt  in  discharge  of 
ttie  debt,  without  [)aying  tlie  money;  People  v.  Babcock,  7  Johns.  201  ;  nor  to  put  a  stone 
in  a  pound  of  butter  so  as  to  increase  its  weight ;  Weierbach  ii.  Tronc,  2  W.  Sl  S.  408  ;  nor 
to  obtain  goods  on  credit,  by  falsely  pretending  to  be  in  trade,  and  to  keep  a  grocery  shop, 
and  giving  a  note  for  the  goods,  in  a  fictitious  name.  Com.  v.  Warren,  6  iMass.  73;  nor  to 
obtain,  in  violation  of  an  .'greement  and  by  false  pretences,  possession  of  a  deed  lodged  in 
a  lliird  person's  hands  as  an  escrow;  Com.  v.  Hearsay,  1  Mass.  137. 


226  OFFE\CES  AGAI\ST  PROPERTY. 

were  then  and  there  hy  artful  and  deceitful  contrivance  so  made  and 
constructed,  as  to  cause  every  quantity  of  goods,  wares  and  merchan- 
dises weighed  therein  and  sold  thereby,  to  appear  of  greater  weiglit 
than  the  real  and  true  weight,  by  one-tenth  part  of  such  apparent 
weight ;  and  that  the  said  A.  B.  on,  &c.,  aforesaid,  at,  &c.,  aforesaid 
(he  the  said  A.  B.  then  and  there  well  knowing  the  said  scales  to  be 
false  as  aforesaid),  did  knowingly,  wilfully  and  fraudulently  sell  and 
utter  to  one  C.  D.,{aa)  a  citizen  of  t!ie  said  state,  certain  goods  in  the 
way  of  his  said  trade,  to  wit,  a  large  quantity  of  tea,  weighed  in  and  by 
the  said  Ailse  scales,  and  as  and  for  ten  pounds  weight  of  tea,  whereas 
in  truth  and  in  fact  the  weight  of  the  said  tea  so  sold  as  aforesaid, 
was  short  and  deficient  of  the  said  weight  of  ten  pounds,  by  one- 
tenth  part  of  the  said  weight  often  pounds,  to  wit,  at,  &c.,  aforesaid, 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Cheating  at  common  law  hy  false  cards. (b) 

That  A.  B.  et  al.,  being  persons  of  dishonest  conversation,  and  com- 
mon gamblers  and  deceivers,  with  false  dice  and  cards,  on,  &c.,at,  &c., 
contriving,practising  and  falsely,fraudulentlyand  deceitfully  intending 
one  A.  S.  with  false  cards  and  false  |)lay,  falsely,  unlawfully,  unjust- 
ly, fraudently  and  deceitfully  to  deceive  and  det>aud,  and  from  the 
said  A.  S.  by  means  of  the  said  false  cards  and  false  play,  craftily  and 
subtilly,  falsely,  fraudulently  and  deceitfully,  different  sums  of  money 
to  acquire  and  obtain,  then  and  there  did  solicit,  incite,  provoke  and 
procure  the  said  A.  S.  to  play  with  them  the  said  A.  B.  et  al.,  at  a  cer- 
tain unlawful  game  called  whist,  for  diverssumsof  money,  by  means 
whereof  the  said  A.  S.  did  then  and  there  play  with  the  said  A.  B., 
&c.,  at  the  said  unlawful  game  called  whist,  for  divers  sums  of  mo- 
ney, and  that  the  said  A.  B.  et  al.  did  then  and  there  with  force  and 
arms  at  the  said  unlawful  game  called  whist,  by  meahs  of  false  cards 
and  false  play,  subtilly,  falsely,  unlawfully  and  fraudulently  receive, 
have  and  obtain  into  their  own  hands  and  possession  the  sum  of 
eighty  pounds  of  lawful  moneys  of  the  said  A.  S.  and  from  the  said 

A.  S.,  and  the  same  did  then  and  there  carry  away,  to  the  great  dam- 
age, &c.,and  against,  &c.(c)     {Conclude  as  in  book  1,  chap.  3). 

Second  count.  Cheating  at  common  laio,  at  a  game  of  dice  called  passage. 

That  the  defendants  being  such  persons  as  aforesaid,  on,  &.C.,  at, 
&c.,  did  solicit,  incite,  provoke  and  procure  the  said  A.  S.  to  play 
with  them  the  said  A.  B.  et  al.,  at  a  certain  unlawful  game  called  pas- 
sage, for  divers  sums  of  money,  by  means  whereof  the  said  A.  S.  did 
then  and  there  play  with  the  said  A.  B.  et  al.,  at  the  said  unlawful 
game  called  passage  for  divers  sums  of  money,  and  that  the  said  A. 

B.  et  al.  did  then  and  there  with  false  dice  and  by  false  throwing  of 
the  same,  that  is  to  say,  hy  slurring  the  said  dice,  subtilly,  falsely, 
unlawfully  and  fraudulently  receive,  have  and  obtain  mto  their  own 
hands  and  possession  the  sum  of  eighty  pounds  of  the  lawful  moneys 
of  the  said  A.  S.  and  from  the  said  A.  S.,  and  the  same  did  liien  and 

(iff)  It  Ih  better  to  iivcr  a  parliciiliir  [ktsoii  dcfraiuled,  tlioufjh  it  seems  enough,  if  sn<fi 

be  the  fiict,  to  allcjre  the  sale  lo  have  licen  to  divers  citizens  tiiiknovvn  ;  2  Star  It.  V.  P.  ItiT. 

{Jjj  Stark.  C.  1*.  411.        (c)  R.  v.  Arnopc,  Treni.  \)\,  and  sec  ii.  v.  Uelsvvorlli,  'Ireiii.  M. 


CHEATS.  227 

there  carry  away,  to  the  great  damage,  &c.,and  against,  &:c.     [Con- 
clude  as  in  book  1,  chup.  3). 

Information.     Passing  a  sham  bank  note,  the  offence  being  charged  as 
a  false  token. [d) 

D.  K.,  attorney  to  the  State  of  Connecticut,  for  the  County  of  New 
Haven,  now  here  in  court  information  makes  that  G.  B.  S.,  of  the 
town  of  New  Haven  in  the  County  of  New  Haven,  on,  &c.,  did  wil- 
fully and  designedly  and  with  intent  to  cheat  and  defraud  one  F. 
W.  I.  of  said  town  of  New  Haven,  utter  and  pass  to  the  said  F. 
W.  I.  as  money,  a  certain  false  token  made  and  executed  after  the 
general  similitude  of  a  bill  of  a  banking  company  intended  as  money 
and  purporting  to  be  a  bank  bill  of  the  denomination  of  five  dollars, 
and  to  have  been  issued  by  a  banking  company  or  corporation  in  the 
State  of  New  York,  by  and  under  the  name  of  "The  Globe  Bank," 
and  purporting  also  to  be  signed  by  N.  B.  as  president  and  to  be 
countersigned  by  S.  D.  D.  as  cashier  thereof;  which  false  token  is 
of  the  following  purport  and  effect,  that  is  to  say,  (ho^e  set  out  the  to- 
ken or  bill) ;  whereby  and  by  means  of  said  false  token  the  said  G. 
B.  S.  did  then  and  there  knowingly  and  fraudulently  obtain  from  the 
said  F.  W.  I.  certain  goods,  the  property  of  the  said  F.  W,  I., 
that  is  to  say,  one  pair  of  boots  of  the  value  of  five  dollars;  whereas 
in  truth  and  in  fact  at  the  time  when  said  false  token  was  so  uttered 
and  passed  to  the  said  F.  W.  I.,  no  such  banking  company  or  cor- 
poration existed  in  the  State  of  New  York  as  "  The  Globe  Bank,"  nor 
did  such  banking  company  or  corporation  ever  have  existence  in  said 
State  of  New  York,  nor  was  there  at  the  time  when  said  lalse  token 
was  uttered  and  passed  to  the  said  F.  W.  I.  as  aforesaid,  or  at  any 
other  time,  any  banking  company  or  coporation  in  the  State  jpf  New 
York  known  by  or  doing  business  under  the  name  of"  The  Globe 
Bank,"  but  said  pretended  bank  bill  and  pretended  signatures  thereto 
were  and  are  wholly  false,  fictitious  and  fraudulent.  All  which  is  to 
the  great  damage  and  deception  of  the  said  F.  W.  I.,  against,  &c., 
and  contrary,  &c. 

Whereupon  the  attorney  prays  the  advice  of  this  honourable  court 
in  the  premises. 

Obtaining  goods  by  means  of  a  sham  hank  note,  as  a  misdemeanor  at 
common  law. 

That  A.  B.,  &c.,  on,  &c.,  at,  &.C.,  fiilsely  and  deceitfully  did  obtain  and 
get  into  his  hands  and  possession,  from  one  T.  C,  three  yards  of  vel- 
vet, &c.,  of  the  value  in  the  whole  of  nine  dollars  eighty  seven  and  a 
half  cents,  of  the  goods  and  chattels,  wares  and  merchandise  of  the 
said  T.  C,  and  bank  notes  and  money  of  the  said  T.  C.  to  the  further 
amount  of  ten  dollars  and  twelve  and  a  half  cents,  by  colour  and 
means  of  a  certain  false  note  and  token,  purporting  to  be  a  bank  note 
for  twenty  dollars,  issued  and  purporting  to  be  payable  on  demand 

(d)  On  this  information,  which  was  drawn  by  Mr.  Kimhcrly  of  Xew  Ilavcn,  tlie  defend- 
ant was  convicted  and  sentence  passed. 


228  OFFEN'CES  AGAINST  PROPERTY. 

by  the  Ohio  Exporting  and  Importing  Company,  at  their  bank  'n\ 
Cincinnati,  and  pnrporting  to  be  subscribed  by  one  Z.  S.,  president, 
and  countersigned  by  J.  L.,  cashier,  and  which  said  false  note  the  said 
F.  C.  believed  to  be  a  true  bank  note  for  twenty  dollars ;  and  that  he 
the  said  J.  S.  did  thereby  and  therefor  procure  the  said  T.  C.  then 
and  there  to  deliver  to  him  the  said  J.  S.,the  goods  and  chattels,  wares 
merchandise,  bank  notes  and  money,  of  him  the  said  T.  C.  aforesaid, 
he  the  said  J.  S.  then  and  there  well  knowing  the  said  note  to  be  false 
and  fraudulent  as  aforesaid,  to  the  great  injury  and  deception  of  him 
the  said  T.  C,  to  the  evil  example,  &.C.,  and  contrary  to  the  form  of 
the  statute,  &.c.(e)     {Conclude  as  iii  book  1,  chap.  3). 

Cheat  by  means  of  a  counterfeit  letter. {f) 

That  J.  G.,  &c.,  on,  &c.,  al,  &c.,  a  certain  false  and  counterfeit  let- 
ter in  the  name  of  a  certain  T.  G.,  of  the  township  aforesaid,  farmer, 
to  a  certain  B.  D.,  in  the  township  of  Plymouth,  in  the  said  county, 
merchant,  directed,  falsely  and  deceitfully  contrived,  made,  imagined 
and  devised,  the  tenor  of  which  said  false  and  counterfeit  letter  fol- 
lows in  these  words,  to  wit.: 

"New  Providence,  December  25th,  1755.  Friend  B.  D.,  let  the 
bearer  J.  G.,  have  half  a  gallon  of  rum;  he  is  going  down  the  road  a 
little  way,  and  at  his  return  send  me  half  a  gallon  liome  by  him, 
and  1  will  pay  you;  the  latter  end  of  next  week  I  shall  go  to  town. 

T.  G." 
and  afterwards,  to  wit,  the  day  and  year  aforesaid,  at  Plymouth 

(e)  Com.  V.  Speer,  2  Va.  Cases  65.  TIic  prisoner  was  convicted,  but  before  judgment 
was  rendered,  the  court  below  adjourned  to  general  couit  the  tbllowing  questions:  1.  Is 
the  falsely  passing  as  a  true  note,  a  false  and  forged  note  purporting  to  be  a  note  of  the 
Bank  of  the  Ohio  Exporting  and  Importing  Company,  and  purporting  to  be  signed,  and 
jiayable  as  in  the  indictment  is  set  forth,  and  procuring  the  goods  and  other  property  ia 
tlic  indictment  mentioned,  for  tlie  said  false  and  forged  note,  when  no  such  bank  or  com- 
pany ever  existed,  either  chartered  or  uncharted,  such  a  filse  token  or  counterfeit  letter  as 
comes  within  tlie  true  intent  and  meaning  of  the  act  of  assembly,  passed  November,  178^, 
and  if  so,  is  the  indictment  in  this  case  good  and  sutHcienl  ?  2.  If  tJiia  is  not  an  offence 
within  the  act  of  ass(nribly,  is  it  an  indictable  offence  at  common  law,  and  if  so  can  judg- 
ment be  given  against  the  defendant  upon  this  indictment,  tiiat  he  be  imprisoned,  the  jury 
not  having  assessed  a  fine  ? 

Per  curiam  :  "  The  court  is  unanimously  of  opinion,  that  the  falsely  passing  as  a  true 
note,  a  fiilsc  and  forged  note  purporting  to  he  a  note  on  the  I'ank  of  the  Oliio  Exporting 
and  Importing  C'ompany,  and  purporting  to  be  signed  and  payable  as  in  the  indictment  is 
set  fortii,  and  procuring  the  goods  and  oilier  properly  in  the  indictment  mentioned  for  the 
said  false  and  forged  note,  when  no  such  bank  or  company  ever  existed, either  chartered  or 
unchartered,  is  not  such  an  offence  as  can  be  prosecuted  under  the  act  entitled  'an  act  against 
those  who  counfei  feit  letters  or  privy  tokens,  to  receive  money  or  goods  in  other  men's 
names,'  [)assed  November  Idth,  17>:i.'i. 

"And  the  court  is  further  unanimously  of  o|)inian,  that  the  ofTence  of  falsely  procuring 
the  goods,  &c.,  of  other  men,  by  means  of  a  false  and  counterfeit  note,  such  as  is  set  forth 
in  the  indictment,  knowing  the  same  to  be  false  and  counterli-it,  is  indictable  as  a  cheat  at 
common  law,  but  that  judgment  cannot  be  rendered  against  the  defendant  in  this  case,  be- 
cause the  indictment  (loth  not  expressly  aver  that  the  said  defendant  knew  tliat  tlie  said 
note  was  a  false  and  fraudulent  note." 

The  count  in  the  text  has  been  amended  by  the  insertion  of  the  scienter  required  by  the 
court, .though  even  as  thus  (pialified  it  is  (luestionahle  whether  a  more  full  avcrinent  of  the 
invalidity  of  the  notes  would  not  be  advisable. 

(/}  This  indictment  was  framed  in  175G,  by  IJenjamin  Chew,  the  then  attorney-gene- 
ral of  Pennsylvania. 


FALSE  PERSOXATIOX. 


229 


township  aforesaid,  in  the  county  aforesaid,  the  said  false  and  coun- 
terfeit letter  to  the  aforesaid  B.  D.  falsely  and  deceitfully  did  give  and 
deliver,  by  colour  and  means  of  which  said  false  and  counterfeit  let- 
ter so  as  aforesaid  to  the  said  B.  D.  delivered,  the  said  J.  G.,  the  day 
and  year  aforesaid,  at  Plymouth  township  aforesaid,  in  his  hands  and 
possession,  one  gallon  of  rum  of  and  from  the  aforesaid  B.  D.,  falsely, 
unlawfully,  unjustly  and  deceitfully  did  acquire  and  obtain,  and  the 
said  B.,  then  and  there  of  the  aforesaid  one  gallon  of  rum  falsely,  un- 
lawfully, unjustly  and  deceitfully  did  deceive  and  defraud,  to  the  evil 
and  pernicious  example  of  all  others  in  such  case  delinquent,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 


II.    FALSE  PERSOXATION  OF  BAIL. 

Under  11  Geo.  IV.  and  1  Wm.  IV.  c.  66,  s.  \\.{g) 
That  A.  B.,  late,  &c.,  on,  &:c.,  at,  &c.,  before  the  right  honourable 
Sir  J.  P.,  knight,  one  of  the  barons  of  her  majesty's  Court  of  Exche- 
quer, at  Westminster  (the  said  Sir  J.  P.,  knight,  then  and  there  having 
lawful  authority  to  take  any  recognizance  of  bail  in  any  suit  then 
depending  in  the  said  court),  then  and  there  feloniously  did  acknow- 
ledge a  certain  recognizance  of  bail,  in  the  name  of  J.  X.,  in  a  certain 
cause  then  depending  in  the  said  court,  wherein  A..  B.  was  plaintiff  and 
C.  D.  defendant,  he  the  said  J.  N.  not  being  then  and  there  privy  or 
consenting  to  the  said  J.  S.,  so  acknowledging  such  recognizance  in 
his  name  as  aforesaid,  against,  (fee,  and  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

III.    SECRETi:XG  GOODS,   &C. 

First  count.     Secreting,  SfC,  with  intent  to  defraud,  ^'C.{li) 

That  A.  K.,  &c.,  on,  &c.,  at,  &c.,  being  a  person  of  an  evil  dispo- 
sition, ill  name  and  fame  and  of  dishonest  conversation,  and  unlaw- 

ig)  Arch.  C.  P.  7th  Am.  ed.  478. 

Ch)  The  26th  section  of  tlie  act  abolishing  imprisonment  for  debt  in  New  York  (Laws  of 
1?31 ,402),and  the  20th  section  of  the  act  under  the  same  title  in  Penns^-lvania  f  Pampli.  Laws, 
1^42,  339  ;  Purd.  585),  make  it  penal  in  a  debtor  to  secrete  his  goods  with  inteiit  to  defraud 
his  creditors.  The  precedent  in  the  text  has  been  several  times  sustained  in  Xew  York, 
though  it  has  not  yet  received  a  final  adjudication  in  the  Pennsylvania  courts.  In  New 
York  tiie  question  catne  up  in  People  «.  Underwood,  16  Wend.  546.  In  tliat  case  excep- 
tion was  taken  because  it  was  neither  averred  nor  proved  tiiat  tlie  prosecutors-  creditors 
were  judgment  creditors.  Bronson  J,,  in  noticing  tliis  position,  said  :  "  The  26th  section 
of  tlie  statute,  under  which  the  defendant  was  indicted,  declares  that  '  any  person  who 
shall  remove  any  of  his  property  out  of  any  county,  with  intent  to  prevent  the  same  from 
being  levied  upon  by  any  execution,  or  who  shall  secrete,  assign,  convey  or  otherwise  dis- 
pffse  of  any  of  his  property  witb  intent  to  defraud  any  creditor,  or  to  prevent  such  pro- 
perty being  made  liable  for  the  payment  of  his  debts,  and  any  person  who  shall  receive 
such  property  with  such  intent,  shall,  on  conviction,  be  deemed  guilty  of  a  misdemeanor.' 
The  language  of  the  act  plainly  extends  to  all  creditors,  and  I  can  perceive  no  sufficient 
reason  for  restricting  its  construction  to  such  creditors  as  have  obtained  judgments  for 
their  demands.  The  fraudulent  removal,  assignment  or  conveyance  of  property  by  u 
debtor,  which  the  legislature  intended  to  punish  criminally,  usually  takes  place  in  antici- 
pation of  a  judgment,  and  tor  the  very  purpose  of  defcatiuir  the  creditor  of  the  fruits  of  his 
recovery.  If  there  must  Hist  be  a  judgment  before  tJie  crime  can  be  cominitlcd,  the  stu- 
2{J 


230  OFFENCES  AGAliVST  PROPERTY. 

I'uily  devising  and  intending  to  defraud  A.  C.  R.  and  H.  B.,  merchants, 
doing  business  in  the  City  of  New  York,  under  the  name,  style  and 
firm  of  R.  and  B.,  said  firm  of  R.  and  B.  bemg  creditors  of  him  the  said 
A.  K.,  on,  (fee,  at,  &c.,  unlawfully  did  secrete,  assign,  convey  and 
dispose  oi{hh)  the  personal  property  of  him  the  said  A.  K.,  to  wit,&c., 
{s/ating'  goods,  as  in  larceny),  with  intent  to  defraud  the  said  firm 
ot  R.  and  B.,  then  and  there  being  creditors  of  him  the  said  A.  K.,  to 
the  great  damage  of  the  said  A.  C.  R.  and  H.  B.,  doing  business  as 
aioresaid  under  the  name,  style  and  firm  of  R.  and  B,,  against,  &c., 
and  against,  &c.    {Conclude  as  in  book  1,  chap.  3). 

Second  count.  Same,  with  intent  to  defraud  and  prevent  such  pro- 
perty from  being  made  liable  for  pay^nent  of  debts. 

Tliat  the  said  A.  K.  further  devising  and  intending  to  defraud  the 
said  A.  C.  R.  and  H.  B.,  doing  business  under  the  name,  style  and 
firm  of  R.  and  B.,  so  being  creditors  as  aforesaid  of  him  the  said  A.  K., 
afterwards,  to  wit,  on  the  day  and  year  aforesaid,  with  force  and 
arms,  at  the  ward,  city  and  county  aforesaid,  wickedly,  fraudulently 
and  unlawfully  did  secrete,  assign,  convey  and  dispose  of  certain 
other  property  of  him  the  said  A.  K.,  to  wit,  &c.,  with  intent  then  and 
there  to  defraud  the  said  A.  C.  R,  and  H.  B.,  doing  business  under 
the  name,  style  and  firm  of  R.  and  B.  as  aforesaid,  and  then  and  there 
being  creditors  of  him  the  said  A.  K.,  and  to  prevent  such  property 
being  made  liable  for  the  payment  of  the  debts  of  him  the  said  A.  K., 
to  the  great  damage  of  the  said  A.  C.  R.  and  H.  B.,  against,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Third  count.     Same,  not  specifying  "property. 

That  the  said  A.  K.,  on,  &c.,  at,  &c.,  fraudulently,  wickedly  and 
unlawfully  did  secrete,  assign,  convey  and  otherwise  dispose  of  his 
])roperty  with  intent  to  defraud  the  said  A.  C.  R,  and  H.  B.,  then  and 
there  being  creditors  of  him  the  said  A.  K.,  and  then  and  there  doing 
business  under  the  name,  style  and  firm  of  R.  and  B.,  against,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chaj).  3). 

Fourth  count.     Jlverring  intent  to  defraiid  persons  unknown. 

That  the  said  A.  K.  being  a  person  of  an  evil  disposition  {as  in  the 
first  count  mentioned),  further  devising  and  intending  to  defraud 
divers  other  persons  to  the  jurors  aforesaid  unknown,  creditors  of  him 
the  said  A.  K.,  afterwards,  to  wit,  on  the  said  fourth  day  of  April,  in 

tutc  will  be  of  very  litUc  public  importance.  Tliis  is  not  like  the  case  of  a  creditor  seeking 
a  cinil  remedy  against  a  fraudulent  debtor.  Tiiere  the  creditor  must  complete  his  title  by 
judgment  and  execution,  before  lie  can  control  the  debtor  in  the  disposition  of  liis  pro- 
licrty ;  he  must  have  a  certain  claim  upon  the  goods  before  he  can  inquire  into  any  alleged 
fV^nid  on  tlie  [lart  of  the  debtor;  Wiggins  v.  Armstrong,  2  Johns.  Cli.  144.  But  this  is  a 
[lublic  [)rosecnliori,  in  which  the  creditor  has  no  special  interest.  7^he  legislature  has  re- 
li'  vtd  the  honest  debtor  from  imprisonment,  and  sul)j(;ctcd  the  fraudulent  one  to  punish- 
ment as  for  a  criminal  ofTcnce.  'l"he  crime  consists  in  assigning  or  otherwise  disposing 
of  his  [iroperty  with  intent  to  defraud  a  creditor,  or  to  prevent  it  from  being  made  liable 
for  the  payment  of  his  debts.  The  public  otience  is  complete,  although  no  creditor  may 
he  in  a  condition  to  question  the  validity  of  the  transfer  in  the  form  of"  a  civil  remedy.  I 
think  the  jury  were  properly  instructed  on  this  question,  and  that  the  exception  should  be 
overruled. " 

Ah  to  the  extent  of  "  creditors"  in  the  act,  sec  Jolines  v.  Potter,  5  S.  &  R.  519,  where  if 
was  held  that  the  word  iueludcd  iKjt  only  persons  whose  debts  ajo  due  and  payable,  but 
tlio-e  whose  debts  arc  not  yet  due. 

{hh)  See  attli',  y.  KJO,  n.  c,  and  VVli.  C.  L.  81,  as  to  this  joinder. 


SECRETING  GOODS,  &.C.  231 

the  year  aforesaid,  with  force  and  arms,  at  the  ward,  city  and  county 
aforesaid,  fraudulently,  wickedly  and  unlawfully  did  secrete,  assign, 
convey  and  otherwise  dispose  oi  [stating  goods)  of  the  property  of  him 
the  said  A.  K.,  with  intent  then  and  there  to  defraud  divers  persons  to 
the  jurors  aforesaid  unknown,  then  and  there  being  creditors  of  him 
the  said  A.  K.,  agamst,  &c.,  and  against,  &c.  [Conclude  as  in  book 
1,  chap.  3). 

Fiflli  count.  Same,  not  specifying  goods,  icith  intent  to  defraud  per- 
sons unknown. 

That  the  said  A.  K.,  afterwards,  on,  &c.,  at,  &c.,  wickedly,  fraud- 
ulently and  unlawfully  did  secrete,  assign,  convey  and  otherwise  dis- 
pose of  iiis  property,  with  intent  to  defraud  divers  other  persons  to 
the  jurors  aforesaid  unknown,  then  and  there  being  creditors  of  him 
the  said  A.  K.,  against,  &c.,  and  against,  &c.  {Conclude  as  in  book 
1,  chap.  3). 

Sixth  count.    Same,  with  intent  to  prevent  property  from  being  levied  on. 

That  the  said  A.  K.,  afterwards,  on,  6z;c.,  at,  &c.,  wickedly,  fraud- 
ulently and  unlawfully  did  secrete,  assign,  convey  and  otherwise  dis- 
pose of  liis  property  to  prevent  such  property  being  made  liable  for 
tlie  debts  of  him  the  said  A.  K.,  against,  &,c.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

Another  form  on  the  same  statute.    First  count,  intent  to  defraud,  to  pre- 
vent property  being  made  liable,  ^c.{i) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  wickedly,  fraudulently  and  un- 
lawfully devising  and  intending  to  defraud  I.  C.  F,,  the  said  I.  C.  F. 
being  then  and  there  a  creditor  of  him  the  said  R.  in  a  large  amount, 
to  wit,  four  thousand  dollars,  of  his  just  debt  so  as  aforesaid  due  from 
him  the  said  R.  to  him  the  said  I.,  did  then  and  there  fraudulently, 
wickedly  and  unlawfully  secrete  {goods,  as  in  larceny)  being  then 
and  there  the  property  of  the  said  R.  with  intent  to  defraud  the  said 
I.,  being  as  aforesaid  a  creditor  of  the  said  R.,  and  to  prevent  the  said 
specified  goods  and  chattels  and  property  of  the  said  R.  being  made 
liable  for  the  payment  of  the  debt  aforesaid,  so  as  aforesaid  due  from 
him  the  said  R.  to  the  said  I.,  to  the  great  damage  of  the  said  I.,  con- 
trary, &c.,  and  against,  &c.  {Conclude  as  in  book  1,  chap.  3). 

Second  count.     Same,  with  intent  to  defraud  another  person. 

That  R.  B.,  on,  &c,,  at,  &c.,  wickedly,  fraudulently  and  unlawfully 
devising  and  intending  to  defraud  J.  P.  B.,  the  said  J.  P.  B.  being 
then  and  there  a  creditor  of  him  the  said  R.,  in  a  large  amount,  to  wit, 
four  thousand  dollars,  of  his  just  debt  so  as  aforesaid  due  from  him 
the  said  R.  to  him  the  said  J.  P.  B.,  did  then  and  there  t'raudulently, 
wickedly  and  unlawfully  secrete  two  hundred  pressing  plates,  two 
screws,  twenty  shafts,  two  hundred  wooden  frames,  one  horse,  one 
wagon,  being  together  of  the  value  of  two  thousand  dollars,  being 
then  and  there  the  property  of  the  said  R.,  with  intent  to  defraud  the 
snid  J.  P.  ]J.,  being  as  aforesaid  a  creditor  of  the  said  R.,  and  to  pre- 
vent the  said  specified  goods  and  chattels  and  property  of  the  said  R. 

(t)  This  indictment  was  drawn  in  1847,  with  great  skill  and  care,  hy  Mr.  Webster,  tlie 
assistant  ot'tlio  attoriscy-gcncral  of  Pennsylvania,  but  was  never  tried. 


2.']2  OFFENCES  AGAINST  PROPERTY. 

being  made  liable  for  the  payment  of  the  debt  as  aforesaid  so  as  afore- 
said due  from  him  the  said  R.  to  the  said  J.  P.  B.,  to  the  great  dam- 
age of  the  said  J.  P.  B.,  contrary,  &.C.,  and  against,  &c.  {Conclude 
as  in  book  1,  chap.  3). 

Third  count.    Secreting,  assigning,  ^'C,  irith  intent  to  defraud  tino,  ^'C. 

That  the  said  R.  B.,  on,  &c.,at,  &c.,  wickedly,  fraudulently  and 
unlawlully  devising  and  intending  to  defraud  I.  C.F.  and  J.  P.  13.,  the 
said  F.  and  B.  being  then  and  there  creditors  of  liim  the  said  R,  in 
large  amounts,  to  wit,  in  the  sum  of  eight  thousand  dollars,  of  their 
respective  just  debts,  so  as  aforesaid  due  from  the  said  R.  to  them  the 
said  F.  and  B.,did  then  and  there  wilfully,  wickedly,  unlawfully  and 
corruptly  secrete,  assign,  convey  and  dispose  of  the  property,  goods, 
wares  and  merchandises  and  moneys  of  him  the  said  R,  of  great  value, 
to  wit,  of  the  value  of  ten  thousand  dollars,  the  character,  quality, 
quantity,  description  and  denomination  of  which  said  goods,  property, 
wares  and  merchandises  and  moneys,  are  to  the  inquest  unknown, 
with  intent  to  defraud  the  said  I.  C.  F.  and  J.  P.  B.,  so  being  creditors 
of  the  said  R.  and  to  prevent  the  said  property,  goods,  wares  and 
merchandises  and  moneys  being  made  liable  for  the  payment  of  the 
debts  of  the  said  R.,  contrary,  &.C.,  and  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

Fourth  count.  Secreting,  c^c,  averring  creditors  to  he  judgment  cre- 
ditors. 

That,  on,  &c.,  J.  S.,  J.  L.  and  L.  H.,  trading  as  S,,  L.  and  H.  were 
creditors  of  the  said  R.  B.  by  judgment,  which  said  judgment  was  en- 
tered in  favour  of  them  the  said  J.  S.,  J.  L.  and  L.  H.  trading  as  afore- 
said, against  him  the  said  R.  in  the  District  Court  for  the  City  and 
County  of  Philadelphia,  at  the  September  term  of  the  said  court,  in 
the  year  one  thousand  eight  hundred  and  forty-six,  being  numbered 
two  hundred  and  fifty-seven  of  the  said  term,  for  the  sum  of  seven 
thousand  nine  hundred  dollars,  and  was  founded  on  a  certain  bond 
and  warrant  of  attorney  thereto  annexed,  executed  by  the  said  R.  B. 
in  favour  of  them  the  said  J.  S.,  J.  L.  and  L.  H.,  trading  as  S.,  L.  and 
H.,  dated  the  twenty-fourth  day  of  October,  one  thousand  eiglit  hun- 
dred and  forty-six,  in  the  penal  sum  of  seven  thousand  nine  hundred 
dollars,  conditioned  for  the  payment  of  the  just  sum  of  three  thousand 
nine  hundred  and  fifty  dollars  on  demand,  with  lawful  interest,  which 
said  judgment  still  remains  on  the  records  of  the  said  courts  unpaid 
and  unsatisfied;  and  the  inquest,  &c.,  on  their  oaths,  &c.,  do  further 
present,  that  the  said  R.  li.,  on,  &c.,  at,  &c.,  wickedly,  fraudulently  and 
unlawfully  devising  and  intending  to  defraud  the  said  J.  S.,  J.  L.  and 
L.  n.,  trading  as  S.,  L.  and  H.,  the  said  J.  S.,  J.  L.  and  L.  II.  trading 
as  S.,  L.  &  II.,  being  then  and  there  judgment  creditors  of  him  the 
said  R.  li.,  as  aforesaid  set  forth,  ot"  tludr  just  debt  and  judgment  so 
as  aforesaid  due  from  him  the  said  R.  to  them  the  said  S.,  L.  and 
H,  trading  as  aforesaid,  did  then  and  there  wilfully,  wickedly,  un- 
lawfully and  corruptly  secrete  the  goods  and  chattels  in  the  aforesaid 
first, secotid  and  third  counts  mentioned  and  referred  to,  being  then  and 
there  the  properly  of  tiie  said  R.,  with  intent  to  defraud  tiiesaid.I.  S., 
J.  L.  and  L.  II.,  trading  as  aforesaid,  being  as  aforesaid  the  judgment 
creditors  of  him  the  said   R.  B.,  and  to  prevent  the  said  goods  and 


FRAUDULENT  LN'SOLVENCY,  &C.  233 

chattels  being  made  liable  for  the  payment  of  the  aforesaid  debt  and 
judgment  so  as  aforesaid  due  from  the  said  R.  to  the  said  J.  S.,  J.  L. 
and  L.  H.,  trading  as  aforesaid,  to  the  great  damage  of  the  said  J.  S., 
J.  L.  and  L.  H.,  trading  as  aforesaid,  contrary,  &:c.,  and  against,  &:c. 
{Conclude  as  in  book  1,  chap.  3). 

Fifth  count.     Same  in  another  shape. 

That  the  said  R.  B.,  on,  &c.,  at,  &c.,  wickedly,  fraudulently  and  un- 
lawfully devising  and  intending  to  defraud  J.  S.,  J.  L.  and  L.  H.,  trad- 
ing as  S.,  L.  and  H.,  the  said  S.,  L.  and  H.,  trading  as  aforesaid,  being 
then  and  there  judgment  creditors  of  the  said  R.,  to  wit,  by  a  judg- 
ment entered  in  the  District  Court  for  the  said  city  and  county  wherein 
they  the  said  J.  S.,  J.  L.  and  L.  H.,  trading  as  aforesaid,  were  plaintilfs, 
and  the  said  R.  was  defendant,  which  said  judgment  was  for  a  large  sum 
of  money,  to  wit,  seven  thousand  nine  hundred  dollars,  and  is  number 
two  hundred  and  fifty-seven  on  the  docket  of  the  September  term  of 
the  said  court  for  the  year  one  thousand  eight  hundred  and  forty-six, 
of  their  just  debt  and  judgment  so  as  aforesaid  due  from  him  the  said 
R.  to  them  the  said  S.,  L.  and  H.,did  then  and  there  wilfully,  wicked- 
ly, unlawfully  and  corruptly  secrete,  assign,  convey  and  dispose  of 
the  property,  goods,  wares  and  merchandises  and  moneys  of  him  the 
said  R.,  of  great  value,  to  wit,  of  the  value  of  ten  thousand  dollars, 
the  character,  quality,  quantity,  description  and  denomination  of 
which  said  goods,  property,  wares  and  merchandises  and  moneys  are 
to  the  inquest  unknown,  with  intent  to  defraud  the  said  J.  S.,  J.  L. 
and  L.  H.,  trading  as  aforesaid,  so  being  judgment  creditors  of  him 
the  said  R.,  and  to  prevent  the  said  property,  goods,  wares  and  mer- 
chandise and  wares  and  moneys  being  made  liable  for  the  payment  of 
the  debts  of  the  said  R.  and  of  the  aforesaid  judgment,  contrary,  &c., 
and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 


IV.    FRAUDULENT  INSOLVENCY  IN  PENNSYLVANIA. 

That  T.  W.  D.,  &c.,  on,  &c.,  at,  &c.,  made  and  presented  to  the 
Honourable  the  Judges  of  the  Court  of  Common  Pleas  of  the  County 
of  Philadelphia,  his  petition  in  writing  praying  for  the  benefit  of  the 
insolvent  laws  of  this  commonwealth,  according  to  the  form,  force 
and  effect  of  the  said  insolvent  laws,  "*  and  the  said  T,  W.  D.  so  peti- 
tioning as  aforesaid,  and  being  then  and  there  indebted  to  a  certain 
B.  L.  of  the  said  county,  yeoman,  and  also  to  divers  others,  whose 
names  are  to  the  jurors  aforesaid  unknown,  in  divers  large  sums  of 
money,  the  said  court  on  tlie  said  petition,  so  presented  as  aforesaid, 
did  then  and  there  appoint  the  eleventh  day  of  January,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  thirty-nine,  for  the  pur- 
pose of  hearing  the  said  T,  W.  D.  and  his  creditors,  at  the  county 
court  house  in  the  City  of  Philadelphia,  on  wliich  said  last  mentioned 
day,  and  at  the  court  house  aforesaid,  and  on  the  several  days  and 
times  thereafter  to  which  the  said  case  was  duly  adjourned,  to  wit,  at 
the  county  aforesaid,  the  said  court  did  meet  and  sit,  for  the  purpose 
aforesaid;  and  the  said  T.  W.  D.,  fraudulently  and  wickedly  contriv- 
ing and  intending  to  cheat  and  defraud  the  said  B.  L.  and  others,  his 

20* 


234  OFFKXCSS  AGAINST  PROrF.RTY. 

creditors  as  aloresaid,  to  wit,  on  the  day  and  year  first  aforesaid,  at 
the  city  and  connty  al'oresciid,  did  collude  and  contrive  with  a  certain 
J.  B.  1).  and  a  certain  C.  W.  D.,  tor  tlic  concealment  of  a  part  of  his 
estate  and  effects,  to  wit,  merchandise,  consisting  of  groceries,  t  viz., 
one  hundred  chests  of  tea ;  dry  goods,  viz.,  five  thousand  yards  of 
domestic  goods;  hardware  and  other  articles,  to  the  jurors  aforesaid 
unknown,  of  great  value,  to  wit,  of  the  value  of  one  hundred  thous- 
and dollars,  thereby  expecting  a  future  benefit  to  himself,  with  in- 
tent to  defraud  the  said  B.  L.  and  others,  his  creditors,  to  the  evil 
example  of  all  others  in  like  cases  offending,  contrary,  &c.,  and 
ag:\inst,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  couvt.     Same  as  Jirst  doicn  to  asterisk,  and  then  p^'oceed: 

And  the  said  T.  W.  D.,  was  then  and  there  indebted  to  B.  L.,  J. 
R.  and  D.  M.,  of  the  said  city  and  county,  yeomen,  and  also  to  divers 
others,  whose  names  are  to  the  jurors  aforesaid  unknown,  in  divers 
large  sums  of  money,  and  that  the  said  T.  W.  D.,  so  petitioning  as 
aforesaid,  did  with  intent  to  defraud  his  creditors  aforesaid,  convey  to 
a  certain  J.  B.  D.  and  C.  W.  D.,  for  the  use  of  himself,  thereby  ex- 
pecting a  future  benefit  to  himself,  part  of  his  estate  and  effects,  to 
wit,  merchandise,  consisting  of  groceries,  &c.  [Concluding  as  in 
first  count  from  t). 

Third  count.  Same  as  first,  but  averring  collusion  icith  another  per- 
son. 

Fourtli  count'. 

That  the  said  T.  W.  D.,  on,&c.,at,  «&c.,  made  and  presented  to  the 
Honourable  the  Judges  of  the  Court  of  Common  Pleas  of  the  County 
of  Philadelphia  his  petition  in  writing,  praying  for  the  benefit  of  the 
insolvent  laws  of  the  Commonwealth  of  Pennsylvania,  and  that  the 
same  T.  W.  D.  so  petitioning  as  aforesaid,  on  the  day  and  year  first 
aforesaid,  at  the  city  and  county  aforesaid,  did  fraudulently  *  convey 
to  a  certain  T.  W.  D.,  Jr.,  part  of  his  estate,  effects  and  credits,  to  wit, 
merchandise,  consisting  of  groceries,  viz.,  one  hundred  chests  of  tea  ; 
dry  goods,  viz.,  five  thousand  yards  of  cotton  goods;  hardware,  and 
other  articles  to  the  jurors  aforesaid  unknown,  of  great  value,  to  wit, 
of  the  value  of  twenty  thousand  dollars,  with  the  expectation  of  re- 
ceiving future  benefit  to  himself,  and  with  intent  to  defraud  iiis  credi- 
tors and  for  the  use  of  himself,  to  the  evil  example,  &c. 

Fifth  and  sixth  counts.  Same  as  first,  but  averring  collusion  with 
another  person. 

Seventh  count.     Same  as  second,  but  specifying  another  assignee. 

Eighth  count.  Same  as  fourth  to  *,  a?id  then  'proceed'. 
conceal  part  of  his  estate,  effects  and  credits,  to  wit,  merchan- 
dise, consisting  of  groceries,  one  iiundred  chests  of  tea;  dry  goods, 
viz.,  five  thousand  yards  of  cotton  domestic  goods,  and  other  articles 
to  the  jurors  aforesaid  unknown, of  great  value,  to  wit,  of  the  value 
of  fifty  thousand  dollars,  with  the  expectation  of  receiving  future 
l)encfit  to  hinjself,  and  with  intent  to  dei'raud  his  creditors,  and  for  the 
tise  of  liimself,  to  the  evil  example,  &c.(y) 

(i)  Tliis  was  the  indictment  in  Dyolt's  case,  wliicli  liavin<r  undergone  a  severe  sernliny, 
r.nd  ufter  liavin;;  Ixrcn  lliorotif^liiy  canvassed  hy  eminent  counsel,  was  sustained  by  tlie 
Supreme  Court  of  J'eiinsylvania.     Coin.  v.  JJyotl,  5  VVliart.  67. 


FRAUDULEXT  INSOLVENCY,  &C.  235 

Fraudulent  msolv>euc\j  hij  a  tax  collector.     First  count,  embezzling  cre- 
ditor's property. 

That  E.  N.  F,,  &c.,  on,  &c,,  at,  &,c.,  made  and  presented  to  the 
Honourable  the  Judges  ot  the  Court  of  Common  Pleas  ot'  the  County 
of  Philadelphia  his  petition  in  writing,  praying  for  the  benefit  of  the 
insolvent  laws  of  this  conmionwealih,  accordmg  to  the  form,  force 
and  etlect  of  the  said  insolvent  laws,  and  the  said  E.  N.  F.,  so  peti- 
lioiiiiig  as  aforesaid,  being  then  and  there  indebted  to  the  County  of 
Philadelphia  in  a  large  sum  of  money,  to  wit,  in  the  sum  of  ten  thous- 
and dollars,  being  the  same  sum  of  money  embezzled  as  hereinafter 
mentioned,  and  also  to  divers  others,  whose  names  are  to  the  jurors 
aforesaid  unknown,  in  divers  large  sums  of  money  to  the  jurors 
aforesaid  unknown,  the  said  court,  on  the  said  petition  so  presented 
as  aforesaid,  did  then  and  there  appoint  the  third  day  of  November, 
one  thousand  eight  hundred  and  forty-seven,  for  the  purpose  of  hear- 
ing the  said  E.  N,  F.  and  his  creditors,  at  tiie  county  court  house,  in 
the  City  of  Philadelphia,  on  which  said  last  mentioned  day  and  at  the 
court  house  aforesaid,  and  on  the  several  days  and  times  thereafter  to 
which  the  said  case  was  duly  adjourned,  to  wit,  at  the  county  afore- 
said, the  said  court  did  meet  and  sit,  for  the  purpose  aforesaid. 
And  the  inquest  aforesaid,  on  their  oaths  and  affirmations  aforesaid, 
do  further  present,  that  theretofore,  to  wit,  on  the  day  and  year  first 
aforesaid,  at  the  county  and  within  the  jurisdiction  aforesaid,  he  the 
said  C.  N.  F,,  *  being  then  and  there  the  agent  of  the  said  County  of 
Philadelphia,  unlawfully  embezzled  divers  large  sums  of  money,  to 
wit,  ten  thousand  dollars,  the  property  of  said  county,  with  which 
said  sums  of  money  he  had  been  entrusted  as  agent  aforesaid,  by  the 
said  County  of  Philadelphia,  to  the  prejudice  of  the  said  County  of 
Philadelphia,  the  said  county  being  then  and  there  a  creditor  of  him 
the  said  E.  and  opposing  his  petition  aforesaid,  as  well  as  of  the  other 
opposing  creditors  of  said  E.,  with  intent  to  defraud  the  said  County 
of  Philadelphia,  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count.  Applying  to  his  own  use  trust  money,  ^-c.  Same  as 
in  first  count  to  *,  and  then  proceed: 

being  then  and  there  the  agent  of  the  County  of  Philadelphia  and 
entrusted  as  such  with  divers  large  sums  of  luoney,  to  wit,  ten  thous- 
and dollars,  the  property  of  said  county,  unlawfully  applied  to  his 
own  use  the  said  money,  to  the  prejudice  of  the  said  County  of  Phila- 
delphia, the  said  county  being  an  opposing  creditor  of  him  the  said  E., 
at  the  hearing  aforesaid,  as  well  as  of  the  other  opposing  creditors  of 
said  E.,  with  intent  to  defraud  the  said  county,  contrary,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Third  count.  Sarne,  dijf'erently  stated.  Js  in  first  count  to  *,  and 
v'oceed : 

eing  then  and  there  the  agent  of  the  County  of  Philadelphia, 
unlawfully  embezzled  and  applied  to  his  own  use  divers  large  sums 
of  money,  to  wit,  ten  thousand  dollars,  the  properly  of  said  county, 
with  which  said  money  he  had  been  entrusted  as  agent  aforesaid,  by 
the  said  County  of  Philadelphia,  to  the  prejudice  of  the  said  county, 
the  said  county  being  creditor  of  the  said  E.,  opposing  his  petition  as 


I 


I 

23fl  OFFENCES  AGAINST  PROPERTY. 

aforesaid,  as  well  as  of  tlie  other  opposing  creditors  of  the  said  E., 
with  intent  to  defraud  the  said  county,  contrary,  &c.  {^Conclude 
as  in  book  1,  chap.  3). 

Fourth  count.  Embezzlement,  ^yc.  The  appointment  us  collector  being 
more  fully  set  forth. 

That  the  said  E.  N.  F.,  on,  &c.,  at,  &c,,  was  duly  constituted  and 
appointed  collector  of  taxes  for  the  County  of  Philadelphia,  in  South 
Ward  in  the  City  of  Philadelphia,  and  being  so  constituted  and  appoint- 
ed, he  the  said  E.,  then  and  there  exercised  the  said  office  of  collector 
of  taxes,  and  was  entrusted  with  and  collected  divers  large  sums  of 
money  in  his  capacity  as  collector  and  agent  as  aforesaid  for  the  said 
county,  said  money  belonging  to  said  county.  And  the  inquest  afore- 
said, on  their  oaths  and  affirmations  aforesaid,  do  further  present,  that 
afterwards,  to  wit,  on  the  day  and  year  first  aforesaid,  at  the  county 
and  within  the  jurisdiction  aforesaid,  he,  &c.,  made  and  presented  to  the 
said  Judges  of  the  Court  of  Common  Pleas  his  petition  in  writing,  (the 
effect  of  which  in  the  first  count  of  this  indictment  is  more  par- 
ticularly set  forth),  he  the  said  E.,  being  then  and  there  indebted  to 
the  said  County  of  Philadelphia,  in  the  sum  of  money  embezzled  as 
hereinafter  mentioned,  and  also  to  divers  others,  whose  names  are  to 
this  inquest  unknown  ;  whereupon  the  said  court  took  such  action  on 
said  petition,  and  such  proceedings  were  thereon  had  therein  as  in 
the  first  count  of  this  indictment  is  described.  And  the  inquest  afore- 
said, upon  their  oaths  and  affirmations  aforesaid,  do  further  present, 
that  afterwards,  to  wit,  on  the  day  and  year  first  aforesaid,  at  the 
county  and  within  the  jurisdiction  aforesaid,  the  said  E.  N.  F.,  being 
such  collector  of  taxes  and 'agent  as  aforesaid  for  the  said  County  of 
Philadelphia,  *  unlawfully  embezzled  divers  large  sums  of  money, 
to  wit,  ten  thousand  dollars,  being  part  of  the  said  money  which  he 
had  collected  as  collector  of  taxes  and  agent  as  aforesaid  for  the 
County  of  Philadelphia,  said  money  being  the  property  of  the  said 
county,  to  the  prejudice  of  the  said  county,  the  said  county  being  an 
opposing  creditor  of  the  said  E.  at  the  hearing  aforesaid,  as  well  as 
of  the  other  opposing  creditors  of  said  E.,  with  intent  to  defraud  the 
said  county,  contrary,  &c.     [Conclude  us  in  book  I, chap.  3). 

Six/h  count.  State  the  office,  ^'C,  as  in  fifth  count  to  asterisk,  and 
proceed : 

unlawfully  applied  to  his  own  use  divers  large  sums  of  money, 
to  wit,  ten  thousand  dollars,  being  the  said  money  with  which  lie  had 
been  entrusted  as  collector  aforesaid,  and  agent  for  the  said  County 
of  Pliiladelphia,  said  money  being  the  properly  of  the  said  county,  to 
the  prejudice  of  the  said  county,  the  said  county  being  an  opposing 
creditor  of  the  said  E.  at  the  hearing  aforesaid,  as  well  as  of  other 
opposing  creditors  of  said  E.,  witii  intent  to  defraud  tiie  said  county, 
contrary,  &c.     (Conclude  as  in  book  1,  chap.  3). 

Seventh  count.  Same  as  sixth,  introducing  the  averment  that  the  mo- 
ney emhezzled  was  fart  of  the  money  lahich  had  been  entrusted  to  the 
collector. 

Seventh  count.  Colluding,  S^^c.  Same  as  first  count  to  *,  and  then  pro- 
ceed : 

An<l  the  said  E.  N.  F.,  fraudulently  and  wickedly  contriving  and 
intending  to  cheat  and  defraud  the  said  County  of  Philadelphia,  and 


VIOLATIOX    OF    FACTOR    LAW.  237 

Others,  his  creditors  aforesaid,  to  wit,  on  the  day  and  year  first  afore- 
said, at  the  city  and  county  aforesaid,  did  collude  and  contrive  with 
certain  persons  whose  names  are  to  this  inquest  as  yet  unknown,  for 
the  concealment  of  a  part  of  his  estate  and  effects,  to  wit,  money  of 
the  value  of  ten  thousand  dollars,  thereby  expecting  further  benefit 
to  himself,  with  intent  to  defraud  the  said  County  of  Philadelphia, 
and  others,  his  creditors,  to  the  evil  example  of  all  others  in  like 
manner  offending,  contrary,  &c.    {Conchide  as  in  book  1,  cfiap.  3). 


V.    VIOLATrON  OF  FACTOR  LAW. 

Flrsl  convt.     Pledging  goods  consigned,  arid  opplyivg  the  proceeds  to 
defendants  use,  U7ider  the  Pennsijhania  statute. 

Tiiat  J.  Q.  A.,  &c.,  and  D.  S.  H.,  on.  Sec,  at,  &c.,  then  and  there 
being  the  factors  and  consignees  of  a  certain  C.  D.,  with  force  and 
arms,  &c.,  did  then  and  there  receive  as  a  consignment  for  sale  from 
the  said  C.  D.,  certain  goods  and  merchandise,  to  wit,  {slating  the 
goods  with  the  same  particularity  as  in  larceny^,  together  with 
other  goods  and  merchandise  of  the  goods  and  property  of  the  said 
C.  D.,  in  all  of  great  value,  to  wit,  of  the  value  of  one  thousand  four 
hundred  and  two  dollars,  and  that  the  said  J.  Q.  A.  and  D.  S.  H.,  so 
being  such  consignees  and  factors  as  aforesaid,  on  the  day  and  year 
as  aforesaid  at  the  county  aforesaid  and  within  the  jurisdiction  aforesaid, 
with  force  and  arms,  &c.,  in  violation  of  good  faith  and  with  intent  to 
defraud  the  said  C.  D.,  did  then  and  there  deposite  and  pledge  with 
one  J.  B.(/t)  said  merchandise,  so  consigned  to  them  as  aforesaid,  as 
a  security  for  certain  monej^,  to  wit,  tlie  sum  of  one  thousand  four 
hundred  and  two  dollars,  which  they  the  said  J.  Q.  A.  and  D.  S.  H. 
had  before  that  time  borrowed  from  the  said  J.  B.,  and  did  then  and 
there  apply  and  dispose  of  to  their  own  use  the  said  money,  to  the 
great  damage  of  the  said  C.  D.,  to  the  evil  example  of  all  others  in 
the  like  case  offending,  contrary,  &c.,  and  against,  &c.  {Conclude 
as  in  book  1,  chap.  3), 

Second  count.  Selling  same,  and  applying  to  defendant's  use  the  pro- 
ceeds. 

That  the  said  J.  Q.  A.  and  D.  S.  H.,  on,  &c.,  then  and  there  being 
the  consignees  and  factors  of  the  said  C.  D.,  with  force  and  arras,  &:c., 
did  then  and  there  receive  from  the  said  C.  D.,  as  a  consignment  for 
sale,  certain  other  goods  and  merchandise,  to  wit,  &c.,  of  the  goods  and 
property  of  the  said  C.  D.,  and  that  the  said  J.  Q.  A.  and  D.  S.  H.  so 
being  such  consignees  and  factors  as  last  aforesaid,  on  the  day  and 
year  last  aforesaid  at  the  county  aforesaid  and  within  the  jurisdiction 
of  this  court,  with  force  and  arms,  &c.,  in  violation  of  good  faith,  and 
with  intent  to  defraud  the  said  C.  D.,  did  then  and  there  sell  the  last 
mentioned  goods  and  merchandise  to  one  B.  C,  at  and  for  the  sum 
of  one  thousand  four  hundred  and  two  dollars,  and  apply  and  dispose; 
of  to  their  own  use,  the  said  sum  of  one  thousand  four  hundred  and 
two  dollars  so  received,  to  the  great  damage  of  the  said  C.  D.,  to  the 

{k)  If  flic  pari}'  from  whom  tlic  money  was  borrowed  and  to  wlioin  tlie  propcrtj  was 
pledged,  be  unknown,  it  can  be  averred  so. 


238 


OFFEXCES  AGAIXST  PROPERTV. 


evil  example  of  all  others  in  like  case  offending,  contrary,  &.C.,  and 
against,  &.c.     {Conclude  as  in  book  1,  chap.  3). 

Third  count.    Selling  same  for  negoliable  instrument. 

That  the  said  J.  Q.  A.  and  D.  S.  H.,  on,  &c.,  then  and  there  being 
the  consignees  and  factors  of  the  said  C.  D.,  with  force  and  arms,  &c., 
did  then  and  there  receive  from  the  said  C.  D.  as  a  consignment  for 
sale,  certain  other  goods  and  merchandise,  to  wit,  of  the  goods  and 
property  of  the  said  C.  D.,  *  and  that  the  said  J.  Q.  A.  and  D.  S.  H., 
so  being  such  consignees  and  factors  as  last  aforesaid,  on  the  day  and 
year  last  aforesaid,  at  the  county  aforesaid,  with  force  and  arms,  &,c., 
in  violation  of  good  faith  and  with  intent  to  defraud  the  said  C.  D., 
did  sell  the  said  last  mentioned  goods  and  merchandise  to  one  A.  B., 
at  and  for  the  price  and  sum  of  one  thousand  four  hundred  and  two 
dollars,  and  received  therefor  as  such  consignees  the  negotiable  in- 
struments of  the  purchasers  of  said  last  mentioned  goods  and  mer- 
chandise, whose  names  are  as  yet  unknown  to  the  inquest  aforesaid, 
and  with  force  and  arms,  &c.,  and  in  violation  of  good  faith  and  with 
intent  to  defraud  the  said  C.  D.,  did  then  and  there  apply  and  dispose 
of  to  their  own  use  the  said  negotiable  instruments  raised  and  ac- 
quired by  the  sale  of  the  said  last  mentioned  goods  and  merchandise 
of  the  said  C.  D.,  to  the  evil  example  of  others  in  like  case  offending, 
contrary,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Fourth  count.  Same  as  third  to  *,  and  proceed: 
and  did  then  and  there  undertake  and  faithfully  promise  the  said  C. 
D.  to  sell  the  said  last  mentioned  goods  and  merchandise  for  and  on 
account  of  him  the  said  C.  D.,  and  to  render  him  a  just  and  true  ac- 
count of  said  last  named  sale,  and  well  and  truly  to  pay  to  the  said 
C.  D.  the  proceeds  thereof  according  to  their  duty  as  such  consignees 
and  factors  as  last  aforesaid,  but  that  the  said  J.  Q,  A.  and  D.  S.  H., 
so  being  such  consignees  and  factors  as  last  aforesaid,  on  the  day  and 
year  last  aforesaid  at  the  county  aforesaid,  with  force  and  arms,  &c., 
in  violation  of  good  faith  and  with  intent  to  defraud  the  said  C.  D., 
did  then  and  there  sell  to  one  A.  B.  the  last  named  goods  and  mer- 
chandise at  and  for  the  price  and  sum  of  one  thousand  four  hundred 
and  two  dollars,  and  did  then  and  there  apply  and  dispose  of  to  their 
own  use  the  said  last  named  sum  of  one  thousand  four  hundred  and 
two  dollars  raised  by  the  sale  of  the  last  named  goods  and  merchan- 
dise, to  the  great  damage  of  the  said  C.  D.,  to  the  evil  example  of 
all  others  in  like  case  offending,  contrary,  &c.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

Fifth  count.     Same  stated  in  another  shape. 

That  the  said  J.  Q.  A.  and  i).  S,  II,,  on,  &c.,  then  and  there  being 
the  consignees  and  factors  of  the  said  C.  I).,  with  force  and  arms,  &c., 
in  violation  of  good  faith  and  with  intent  to  defraud  the  said  C.  D., 
did  apply  and  dispose  of  for  their  own  use,  certain  other  money,  to 
wit,  the  sum  of  one  thousand  four  hundred  and  two  dollars,  which 
said  last  mentioned  sum  of  money  had  before  that  time  been  raised 
and  acquired  by  tlicrn  the  said  J.  Q.  A.  and  J).  S.  11.,  by  the  sale  of 
certain  otlujr  goods  and  merchandise,  to  wit,  {stating;  the  snoods),  of 
the  goods  and  property  of  the  said  C.  D.,  which  said  last  named  goods 
and  nierf;Iiandisc  had  been  before  that  time  consigned  for  sale  to  tlii-ni 
the  said  J.  Q.  A.  and  D.  S.  II.  by  the  said  C.  D.,  to  the  great  damage 


FALSE  PRETEN'CES.  239 

of  the  said  C.  D.,  to  the  evil  example  of  others  in  like  case  offending, 
contrary,  &.C.,  and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 


VI.  OBTAINING  GOODS  BY  FALSE  PRETENCES. (Z) 

General  frame  of  indictment. 

That  A.  B.,  etc.,  on,  &c.,  at,  &c.,  devising  and  intending  to  cheat  and 
defraud,  &c.,  [stating party  intended  to  be  defrauded),  oi\\\s  goods, 
moneys,  chattels  and  property,  unlawfully  didfalsely(a)  pretend(6)  to 
C.  D.,(c)  that(a')  {setting  out  the  pretence),  whereas  in  truth  and  fact 
[iiegativing  the  pretence),{e)  as  he  the  said  A.  B.,  then  and  there  well 
knew,  [or,  which  said  pretence,  the  said  A.  B.  then  and  there  well 
knew  to  be  false), (/)  by  colour  and  means(^^)  of  which  said  false 
pretence,  and  pretences,  he  the  said  A.  B.  did  then  and  there  unlaw- 
fully obtain(A)  from  the  said  CD.  {stating  the  property  obtained),{i) 
being  then  and  there  the  property  of  the  said  C.  D.,(y)  with  intent 
to  cheat  and  defraud  the  said  C.  D.(^')  to  the  great  damage  of  the  said 
C.  D.(/)  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

(Z)  Before  examining  the  nature  and  requisites  of  an  indictment  for  obtaining  goods  by  false 
pretences,  it  will  be  proper  to  take  a  general  view  of  the  oftence  itself.  It  will  be  observed 
at  the  outset,  that  in  their  operative  clauses,  the  statutes  in  England  and  in  Massachusetts, 
New  York  and  Pennsylvania,  are  tiie  same;  see  Wh.  C.  L.  459.  Keeping  this  in  mind, 
the  general  definition  afforded  by  the  cases  both  in  England  and  this  country  is,  that 
a  false  pretence  must  be  a  false  representation  as  to  some  existing  fact,  made  for  the 
[.tirpose  of  inducing  the  prosecutor  to  part  with  his  property;  and  not  a  mere  promise, 
which  the  promisor  intends  to  break,  as  for  payment  of  goods  on  delivery  ;  R.  v.  Goodhall, 
K.  &  R.  4G1 ;  R.  v.  Parkes,  2  Leach  616;  Com.  v.  Drew,  19  Pick.  l';4;  Com.  v.  Hutchin- 
sun,  2  Pa.  li.  J.  242 ;  Com.  v.  Stone,  4  Met.  4S  ;  Com.  v.  VVilgus,  4  Pick.  177.  Thus,  where 
an  indictment  stated  the  false  pretence  to  be,  that  the  prisoner  would  tell  the  prosecutor 
where  his  strayed  horse  was,  if  he  would  give  him  one  pound,  without  alleging  that  the 
prisoner  pretended  he  knew  where  it  was,  it  was  held  bad,  though  the  prisoner  received 
tiie  money,  and  refused  to  tell  ;  R.  v.  James  Douglass,  1  Mood.C.  C.  462.  But  it  has  been 
liolden  that  obtaining  money  as  a  share  of  a  bet,  on  a  fraudulent  representation  that  it  had 
been  laid,  though  to  be  decided  by  the  future  event  of  a  pedestrian  feat,  is  a  false  pretence; 
R.  B.  Young,  3  T.  R.  98.  It  is  not  necessary  to  constitute  the  offence,  as  was  thought 
in  New  York,  People  v.  Conger,  1  Wheel.  C.  C.  449,  that  the  prisoner  should  orally  or  in 
writing  make  any  false  assertion,  for,  if  he  present  a  genuine  order  for  the  payment  of 
nioney,  and  assumes  by  his  conduct  to  be  the  person  to  whom  it  is  payable,  and  by  this 
means  fraudulently  obtains  money  which  belongs  to  another,  he  will  be  within  the  statute; 
R.  V.  Story,  R.  &  R.  81.  Thus  where  a  party  not  being  a  member  of  the  University  of  Ox- 
ford, went  into  a  shop  there,  wearing  the  academic  cap  and  gown,  and  obtained  goods,  his 
dress  was  held  a  sufficient  false  pretence,  though  nothing  jjassed  in  words  ;  R.  v.  Barnard, 
7,  C.  tit  P.  784.  Another  instance  in  which  the  acts  and  conduct  of  a  party  were  held 
tantamount  to  a  false  pretence,  without  false  verbal  representations,  was  that  where  a  party 
obtained  goods  and  money  in  exchange  for  a  countertcit  promissory  note,  by  asking  for 
goods  at  a  shop,  and  at  the  same  time  throwing  down,  as  in  payment,  the  note  in  question, 
which  purported  to  be  of  larger  value  than  the  price  of  the  goods,  without  stating  it  to  be 
genuine  ;  R.  v.  Freeth,  R.  &,  R.  127.  (In  this  case  the  first  and  second  counts  were  in  the 
statute  for  false  pretence,  the  third  was  for  a  cheat  at  common  law.  Against  the  last  count 
it  was  argued  that  a  note  for  less  than  twenty  shillings  being  void  and  prohibited  by  law, 
it  was  no  offence  to  forge  it  (as  to  which  point  see  Rushworth's  case,  R.  &-  R.  318),  or  to 
obtain  money  on  it  when  forged,  as  the  party  to  whom  it  was  uttered  ought  to  have  been 
on  his  guard;  Graham  B.,  however,  left  the  case  to  the  jury,  directing  them,  that  the  evi- 
dence, if  true,  sustained  the  second  and  tliird  counts.  Verdict,  guilty  on  both  those  counts. 
The  judges  were  of  the  opinion  stated  above,  which  appears,  in  substance,  confined  to  the 
second  count;  but  Lawrence  J.,  thought  tiie  shop-keeper  not  ciicat;d  if  he  parted  with  his 
giiods  for  a  piece  of  pa[)er,  wliieh,  being  a  pioniissory  note  for  less  than  twenty  shillings, 
he  must  be  presumed  in  law  to  know  in  law  was  woilh  nothing,  if  genuine).    Where,  how- 


240  OFFENCES  AGAINST  PROPERTY. 

ever,  poods  were  obtained  by  means  of  a  forged  order  in  writinjf,  requesting  the  prosecu- 
tor to  let  tJie  bearer  have  linen  ibr  J.  R,  and  signed  J.  R.,  this  is  reported  to  iiave  been  held 
by  Taunton  J.,  to  be  uttering  a  forged  request  for  delivery  of  goods,  and  a  felony  under 
1  W'ni.  IV.  c.  66,  s.  ly  ;  R.  v.  Evans,  5  C.  &  P.  553  ;  whereas,  obtaining  money  from  ;i 
county  treasurer  by  a  forged  note  purporting  to  be  signed  by  a  magistrate,  for  paying  the 
expenses  of  conveying  vagrants,  had  been  held  a  false  pretence  in  R.  v,  Rushworth,  R.  «St 
R.  317;  1  Stark.  C.  P.  396,  S.  C.  Uttering  as  good  and  available,  a  bank  note  which 
had  been  long  cancelled,  and  the  makers  bankrupt,  has  been  thought  not  to  be  sufficient 
evidence  of  a  traud  indictable  at  common  law,  or  a  cheat,  unless  bankruptcy  be  brought 
home  to  all  the  parties ;  R.  v.  Spencer,  3  C.  &,  P.  420 ;  R.  v.  Hurst,  R.  &  R.  460 ;  see  Dick- 
inson's Q.  S.  p.  330.  So  great  a  strictness  in  proof,  however,  is  not  deemed  essential  in 
tliis  country ;  Com.  v.  Stone,  4  Met.  43.  And  the  reason  of  the  distinction  here  is  that 
where  a  bank  becomes  publicly  insolvent  there  is  no  one  behind  to  pursue,  whereas  in 
England  the  members  of  the  company  are  still  responsible.  On  the  other  hand,  it  is 
evident  that  putting  a  note  of  this  kind  into  the  general  circulation  of  the  country  is 
likely,  by  defrauding  a  succession  of  persons,  to  affect  the  public,  and  is  not  the  mere 
case  of  cheating  in  a  private  bargain. 

Obtaining  goods  by  giving  in  payment  a  check  on  a  banker  with  whom  the  party  keeps 
no  cash,  and  which  he  knows  will  not  be  paid,  was  declared  by  all  the  judges  to  be  indict- 
able as  a  false  pretence,  though  it  was  not  an  indictable  fraud  at  common  law  ;  R.  v.  Lara, 
6  v.  R.  565 ;  R.  v.  Hunt,  R.  ct  R.  460.  In  a  false  pretence  of  this  kind  it  was  held  to  be  well 
laid,  "  tliat  the  check  was  a  good  and  genuine  order  for  the  payment  of,  and  of  the  value 
of,  the  sum  specified  ;"  R.  v.  Sniythe  Parker,  2  Mood.  C.  C.  1.  A  cqunt  alleged  the  prisoner 
to  have  obtained  from  G.  P.  by  a  false  pretence  (stated),  a  sovereign  "with  intent  to  de- 
fraud G.  P.  of  tlie  sum  of  five  shillings,  parcel  of  the  value  of  the  last  mentioned  piece  of 
the  current  gold  coin."  Prisoner  was  shown  to  have  made  the  pretence  laid,  viz.  that  he 
was  Mr.  H.,  and  thereby  induced  G.  P.  to  buy,  at  the  cost  of  five  shillings,  a  bottle  of  stuff 
lie  said  would  cure  G.  P.'s  child.  G.  P.  gave  him  a  sovereign  and  received  fifteen  shillings 
in  change.  Prisoner  was  shown  not  to  he  H. ;  held  to  be  a  false  pretence,  and  with  intent 
well  laid;  Reg.  v.  Blooinfield,  C.  &l  M.  537.  See  post,  p.  245.  A  false  statement  to  a  parish 
oliicer  as  an  excuse  tor  not  working,  that  the  party  has  not  clothes,  is  not  a  false  pretence 
within  the  act,  though  it  induce  the  officer  to  give  him  clothes,  as  it  was  rather  an  excuse 
lor  not  working  than  a  false  pretence  to  obtain  goods  ;  R.  v.  Wakeling,  R.  &  R.  504. 

Obtaining  money  by  a  pretence,  known  by  the  offender  to  be  false  at  the  time,  is  equally 
criminal,  tliough  the  party  who  parted  with  the  money  laid  a  plan  to  entrap  him  into  com- 
mitting the  offence;  R.  v.  Ady,  7  C.  &.  P.  140. 

As  to  the  subject  matter  obtained,  it  is  said  that  obtaining  a  check  on  a  banker,  on  un- 
stamped paper,  payable  to  a  person  not  named,  but  not  to  bearer  also,  is  not  obtaining  a 
"valuable  security"  within  the  act,  for  by  55  Geo.  III.  c.  184,  the  banker  would  be  liable 
to  a  penalty  of  £50  for  paying  it;  R.  v.  Yates,  1  Mood.  C.  C.  170.  Obtaining  credit  on 
account  from  the  j)risoner's  bankers,  by  drawing  a  hill  on  a  person  on  whom  he  has  a  right 
to  draw,  and  which  has  no  chance  of  being  paid,  and  delivering  it  to  them,  is  not  obtain- 
ing money  under  7  and  8  Geo.  IV.,  though  tlie  bankers  in  consetpiencc  pay  money  on  the 
prisoner's  account  to  other  people,  to  a  larger  extent  than  they  would  otherwise  have  done; 
li.  V.  Worrell,  1  Mood.  C.  C.  224. 

In  the  cases  which  have  occurred  in  this  country  the  same  rules  are  applied.  Thus,  where 
one  under  a  fictitious  name  delivered  to  a  person  to  sell  on  commission,  spurious  lottery 
tickets  purporting  to  be  signed  by  himself,  and  received  from  the  agent  the  proceeds  of  the 
sale;  Com.  ».  VVilgus,  4  Pick.  177;  where  a  keeper  of  an  intelligence  office,  by  falsely 
pretending  he  had  a  situation  in  view,  induced  the  prosecutor  to  pay  him  two  dollars  as  a 
piemium  ;  Com.  v.  Parker,  Thacher's  C.  C.  24;  where  the  defendant  falsely  pretended  to 
tlie  prosecutor  that  a  horse  he  was  about  to  sell  him  was  the  horse  "Charley,"  whereas  he 
was  not  that  horse,  but  another  of  ecpial  worth;  State  v.  .Mills,  17  Maine  R.  211;  where 
a  person  obtained  goods  under  the  false  |)retrnet:  that  he  lived  with  and  was  employed  by 
A.  H.,  who  sent  him  lor  them;  People  v.  Johnson,  12  .lolins.  2iJ2  ;  Lambert  v.  People,  9 
Cow.  57d;  where  the  delendaiit  lepresented  himself  to  be  in  a  successful  business  as  a 
merchant  in  lioston,  with  from  8  9,000  to  $  10,000  over  and  above  all  his  debts,  and  to 
give  weight  to  this  assertion  rejiresented  that  he  had  never  had  a  note  protested  in  his  life, 
and  had  then  no  endorsers;  wherein  one  count  the  pretence  was,  "that  he,  the  said  J. 
A.  15.,  possessed  a  capital  of  S>b,000,  that  the  said  $8,000  had  come  to  him  through  his 
will',  it  being  her  estate,  and  that  a  part  of  it  had  already  eoine  into  his  possession,  a  part 
would  come  into  his  possession  in  the  month  then  next  ensuing,  and  that  for  the  leinaiii- 
ing  ()art  thereof  lie  would  be  obliged  to  wait  for  a  short  time;"  and  in  the  second  count, 
that  ln',  the  said  J.  A.  15.,  "  posses.sed  a  capital  of  $  8,00(1,  which  said  §8,000  had  come  to 
him  through  his  wile,  it  bc;ing  her  estate;"  and  in  a  third,  "  that  he,  the  said  J.  A.  13.,  was 
then  and  there  possessed  of  §8,000;"  where  the  defendant  pretended  to  the  proseculc/r 
Ihat  the  goods  to  be  purchased  were  ordered  for  a  hotel-kcepw  in  Washington,  who  wua 


FALSE  PR ETEXCES.  211 

a  man  of  credit,  and  to  whom  they  were  to  be  immediately  forwarded;  Com.  v.  Spring, 
cited  3  Pa.  L.  J.  fi'J  ;  where  the  pretence  was,  that  the  defendant  owned  real  estate  in  Pas- 
syunk  Road  worth  $  7,0(JU,  and  that  he  had  [lersonal  property  and  other  means  to  meet  his 
liabihlie;:,  and  that  he  was  in  g-ood  credit  at  the  Ptiiladelpiiia  Bank;  Com.  v.  M'Crossin, 
3  Pa.  L.  J.  2Hi ;  wiiere  tlie  indictment  charged  that  N.  represented  to  O.  that  he  possessed 
four  valuable  negroes,  and  that  he  would  let  him  have  them  for  four  bills  of  exchange  on 
Philadelphia,  and  that  in  consequence  of  this  representation  the  l)ills  were  drawn  by  O., 
and  that  tliis  representation  was  made  knowingly  and  designedly  and  witii  intent  to  cheat 
O.  of  his  drafts,  and  that  in  fact  N.  possessed  no  such  slaves  as  he  pretended  to  have;  State 
».  Newell,  1  Mo.  R.  177  ; — in  all  these  cases,  there  was  held  to  be  the  false  representation 
of  an  existing  fact,  and  that  the  exigencies  of  the  statute  therefore  were  satisfied. 

(a)  An  indictment  averring  that  the  defendant  did  "  falsely  and  fe.lmiously  pretend,"  &e., 
was  held  bad;  R.  v.  Walker,  6  C.  &.  P.  657.  In  those  states,  however,  as  in  New  York, 
where  the  otfence  is  a  felony,  the  averment  is  of  course  essential. 

(6)  The  word  pretend  is  indispensable,  though  the  word  falsely,  according  to  ihe  En- 
glish practice,  R.  v.  Airey,  2  East  R.  31,  is  not  essential,  the  pretences  being  subsequently 
negatived.     It  is  much  safer  however  to  insert  it. 

(c)  The  pretence  need  not  be  to  the  party  from  whom  the  property  is  obtained ;  if  made 
to  his  agent,  who  communicates  it  to  the  principal,  it  is  sufficient ;  Com.  v.  Call,  21  Pick. 
515;  Com.  v.  Harley,  7  Met.  462.  And  in  the  same  case,  it  was  held  that  an  indictment 
which  substantially  averred  that  the  false  pretences  were  practised  on  A.  B.,  and  his  mo- 
ney obtained  thereby  with  intent  to  defraud  C.  D.,  was  good. 

Where  the  indictment  averred  the  pretences  to  have  been  made  to  a  firm,  it  is  sufficient 
to  show  that  they  were  made  to  one  of  the  firm;  Com.  v.  Mooare,  Thach.  C.  C.  410;  and, 
in  a  late  case,  the  Supreme  Court  of  Massachusetts  held,  that  a  false  pretence  made  use  of 
to  an  agent,  who  communicates  it  to  his  principal,  and  who  is  influenced  by  it  to  act,  is 
within  tlie  statute;  Com.  u.  Call,  21  Pick.  515  ;  Com.  ».  Harley,  7  Met.  462;  see  also  Com. 
V.  Bagly,  7  Pick.  279.  A  false  pretence  made  to  A.  in  B.'s  hearing,  by  which  money  is 
obtained  by  B.,  may  be  laid  as  a  pretence  made  to  B.;  R.  v.  Dent,  1  C.  <fe  K.  249.  And  it 
is  said  that  money  paid  by  an  agent  is  rightfully  laid  as  money  paid  by  a  principal. 

The  money  of  a  benefit  society  whose  rules  were  not  enrolled,  was  kept  in  a  box,  of 
which  E.,  one  of  the  stewards,  and  two  others,  had  keys;  the  defendant  on  the  false  pre- 
tence that  his  wife  was  dead,  which  pretence  he  made  to  the  clerk  of  tlie  society  in  the 
Rearing  of  E.,  obtained  from  the  hands  of  E.,  out  of  the  box,  five  pounds;  it  was  held,  that 
in  an  indictment  the  pretence  might  be  laid  as  made  to  E.,  and  the  money  as  the  property 
of  "  E.  and  others,"  obtained  from  E. ;  ih. 

{(l)  It  is  not  necessary  to  describe  the  pretences  more  particularly  than  they  were  shown 
or  described  to  the  party  at  the  time,  and  in  consequence  of  which  he  was  imposed  on  ;  2 
East  P.  C.  c.  18,  s.  13,  p.  d37,  83d.  It  is  sufficient  to  state  the  effect  of  the  pretence  cor- 
rectly ;  the  very  words  need  not  be  used  ;  R.  c.  Scott,  cited  in  Rex.  v.  Parker,  2  Mood.  C.  C. 
K.  I ;  7  C.  &  P.  b25.  But  a  variance  between  the  indictment  and  the  evidence,  with  re- 
gard to  the  effect  of  the  pretences,  will  be  fatal ;  thus,  where  the  indictment  stated  that  the 
defendant  pretended  he  had  paid  a  sum  of  money  into  the  Bank  of  England,  and  the  evi- 
dence showed  tliat  he  had  said,  generally,  that  the  money  had  been  paid  into  the  bank^ 
Eilenborough  C.  J.,  held  the  variance  fatal;  R.  v.  Prestow,  1  Campb.  494. 

But  it  is  not  necessary  to  prove  the  whole  of  the  pretences  charged  ;  proof  of  part,  and  that 
the  propcity  was  obtained  by  force  of  such  part,  is  enough  ;  R.  t).  Hill,  R.  Si.  R.  190  ;  R. 
V.  Ady,  7  C.  »fc  P.  140.  In  New  York  it  has  been  held  that  where  one  or  more  of  the  pre- 
tences are  proved  to  be  false,  it  is  sufficient,  per  se,  to  constitute  the  offence  ;  the  accused  may 
be  convicted,  notwithstanding  that  the  other  pretences  in  the  indictment  are  not  proved ;  such 
pretences  being  in  such  case,  regarded  as  surplusage;  see  People  v.  Stone,  9  VVend.  Is2; 
State  V.  Mills,  17  Maine  21 1.  The  same  rule  exists  in  the  analagous  cases  of  perjury  and 
blasphemy  ;  Ld.  Raym.  886  ;  2  Campb.  138-9  ;  Cro.  C.  C.  7th  ed.  662;  State  v.  Hascall, 
6  N.  Hamp.  358;  Com.  c.  Knceland,  20  Pick.  2i)6  ;  Wh.  C.  L.  p.  164.     {See  next  note). 

An  indictment  stated  that  by  the  rules  of  a  benefit  society,  every  free  meniber  was  en- 
titled to  five  pounds  on  the  death  of  his  wife,  and  that  the  defendant  falsely  pretended  that 
a  paper  which  he  produced  was  genuine,  and  contained  a  true  account  of  his  wife's  death 
and  burial,  and  ih^i  he  further  falsely  pretended  that  he  was  entitled  to  five  pounds  from 
the  society,  by  virtue  of  their  rules,  in  consequence  of  the  death  of  his  wife;  by  means  of 
which  "  last  mentioned  false  pretence"  he  obtained  money  ;  it  was  iield  good  ;  R.  c.  Dent, 
1  C.  &  K.  249. 

(e)  It  is  necessary  for  the  pleader  to  negative  specifically  all  the  false  pretences  relied 
on  to  sustain  the  indictment;  Tyler  v.  State,  2  Humph.  37  ;  R.  r.  Perott,  2  M.  <&.  S.  379. 
Tiiere  must  be  a  special  averment  that  the  pretences,  or  some  of  them,  are  false ;  and 
where  none  of  them  arc  negatived,  the  case  will  be  reversed  on  error.  It  was  held,  in  one 
case,  that  if  the  proof  was  adequate  as  to  the  offence,  though  only  coming  up  to  a  portion 

21 


212  OFFENCKS    AGAINST    PROPERTV. 

of  t!ic  pretence  nverrrd  in  the  indictment,  a  conviction  was  sfood ;  R.  v.  Hill,  R.  &  R.  190. 
In  K.  V.  I'erolt,  tlie  question  was  tlioroutrhly  examined  by  Elienljorough  C.  J.,  and  it  U':i3 
icniarlved  as  a  reason  for  the  rule  above  laid  down,  "  to  state  merely  the  whole  of  tlie  false 
j)retcnce,  is  to  state  a  matter  generally  combined  of  some  truth  as  well  as  falsehood."  Sncli 
is  the  law  in  New  York;  People  v.  Stone,  9  Wend.  182;  People  v.  Haynes,  11  Wend.  563. 
But  it  would  seem  to  be  safer  to  negative  each  pretence  specifically  in  the  indictment;  it 
being  plain  that  if  only  one  of  the  assignments  is  well  laid  and  is  proved  on  trial  to  have 
been  the  moving  cause  of  the  transfer  of  property  from  the  prosecutor  to  the  defendant,  the 
rest  mav  be  disregarded.  It  is  difRcult  to  say  how  a  court,  on  demurrer  or  motion  in  arrest 
o'judgment,  can  go  bcliind  the  indictment  and  say  that  the  particular  assignment,  though 
one  among  many,  which  the  pleader  has  omitted  to  negative,  was  not  the  operative  motion 
on  the  prosecutor's  mind.  In  a  case,  however,  where  one  portion  of  the  assignment  of 
fraud  must  necessarily,  from  its  structure,  be  true,  e.  g.  where  the  defendant  pretends  that 
being  the  servant  of  A.  B.,  he  was  employed  by  liim  to  convey  goods  to  the  defendant,  for 
tiie  carrying  of  wliich,  porterage  is  cliarged,  and  wliere  the  fact  is  that  the  defendant  is 
tlic  servant  of  A.  B.,  but  was  not  employed  by  him  to  carry  the  goods  in  question,  it  is  of 
course  only  necessary  to  negative  what  is  in  fact  the  false  pretence  used. 

(/)  It  is  always  prudent  to  allege  a  scienter,  and  it  is  necessary  so  to  do,  unless  the 
pretences  stated  are  of  such  a  nature  as  to  exclude  the  possible  hypothesis  of  the  defendant 
not  knowing  of  their  falsity;  R.  v.  Philpotts,  1  C.  &  K.  112;  see  also  Com.  v.  Speer,  3 
Va.  Cases  65;  see  ante,  p.  223.  A  contrary  opinion,  it  is  true,  is  expressed  by  Judge  Par- 
sons, in  Com.  v.  Blumenthal,  Piiiladelphia,  1846,  to  a  manuscript  copy  of  which  I  have 
had  the  opportunity  to  refer. 

"  But  it  has  been  furtlier  contended  that  an  indictment  for  this  offence  should  always 
aver  the  scienter,  that  the  accused  made  the  representations  charged  in  the  bill  knowing 
them  to  be  false,  for  non  constat,  but  that  in  a  case  like  the  present,  where  a  defendant  is 
charged  with  having  made  a  representation  as  to  his  means,  solvency  and  ability  to  pay, 
he  might  not  have  known  of  the  true  condition  of  his  affairs,  and  if  such  was  the  case,  he 
would  be  guilty  of  no  offence.  It  seems  to  me,  however,  there  might  be  two  answers  given 
to  this  argument,  without  resorting  to  authority.  In  the  first  place  there  is  nothing  said 
of  the  scienter  in  the  statute,  unless  we  take  it  from  the  words  'intent'  and  'designedly,' 
and  we  have  already  given  an  understanding  of  them.  And  in- the  second  place,  where 
the  charge  on  tiie  record  is,  that  the  intention  was  to  cheat  and  defraud,  the  fact  that  the 
accused  made  a  statement  of  his  means  and  ability,  which  he  honestly  believed  was  true, 
but  in  fact  was  mistaken,  it  would  be  matter  of  proof  by  him  to  rebut  the  assertion  upon 
the  record  tiiat  his  intention  was  to  cheat,  and  the  further  averment  that  the  representa- 
tion was  false. 

"To  sustain  his  position  the  learned  counsel  has  cited  a  number  of  respectable  English 
author  ities  wiicre  it  was  ruled  that  in  consequence  of  the  scienter  not  being  averred  in  the 
bill,  the  indictment  was  held  bad.  But  I  think  on  an  examination  of  tlie  forms  of  most  of 
the  English  pleaders  as  given  in  the  elementary  writers,  and  the  decisions  on  this  point,  the 
scienter  lias  been  required  to  be  averred  only,  where  the  statute  under  which  the  party  was 
indicted  contained  that  as  one  of  its  provisions,  or  where  from  the  character  of  the  offence 
it  was  necessary  to  state  in  the  indictment  the  material  facts  and  circumstances  which  the 
))ublic  prosecutor  was  bound  to  prove,  in  order  to  make  the  act  criminal. 

"  The  tirst  section  of  the  act  of  the  .30  Geo.  II.  c.  26,  is  in  tliese  words  :  '  That  all  persons 
who  knowingly  and  designedly  by  false  pretence  or  pretences,  shall  obtain  from  an}' person 
or  persons  money,  goods,  wares  and  merchandise,  with  intent  to  cheat  and  defraud  any 
person  or  persons  of  the  same,'  &-c.  It  will  be  found  by  a  reference  to  the  forms  given  by 
Mr.  Chitty,  of  indictments  under  tliis  statute,  tlie  scienter  is  averred.  The  fitly-tliird  sec- 
tion of  the  7  and  8  Geo.  IV.  c.  20,  is  as  follows :  '  If  any  person  shall  by  any  false  pretence 
obtain  from  any  other  person  any  chattels,  money  or  valuable  security'  with  intent  to  cheat 
or  defraud  any  person  of  tlie  same,'  &.c.  Now  1  observe  that  in  indictments  under  this 
statute,  the  scienter  is  not  always  averred,  and  does  not  seem  to  be,  except  in  those  cases 
where  from  the  facts  in  the  case,  it  was  material  in  order  to  constitute  the  offence,  and 
when  without  an  averment,  that  the  accused  knew  of  the  falsity  of  the  means  alleged  to 
have  been  used,  there  would  have  been  no  crime;  and  such  I  am  certain  was  the  case  of 
the  Queen  v.  Wiekham,  10  A.  &.  10.  '.iS,  where  the  olfencc  charged  was  in  relation  to  a  pro- 
missory note,  and  the  representations  made  about  the  same,  when  it  was  material  to  aver 
«nd  prove  that  the  [)risoner  knew  that  the  note  for  twenty-one  pounds  was  not  a  good  and 
valuiiblc  security.  And  not  unlike  it  is  the  case  of  the  Queen  v.  Henderson,  1  C.  &-  M. 
330,  where  it  was  also,  from  the  natuie  of  the  offence  chargt:d,  material  to  show  that  the 
jirisf)nr;r  knc^w  that  the  allegation  was  false,  for,  from  the  nature  of  the  assertion  set  forth, 
tlie  Uj/itiniale  inference  was  that  it  was  true. 

"  But  in  the  eax;  before  us  the  avernient  of  the  false  statement  is  one  alleged  to  have  been 
made  with  regard  to  the  prisoner's  own  atluirs,  where  from  the  nature  of  the  assertion,  the 


FALSE    PRETENCES.  2-13 

Form  used  in  Massachusetts. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  being  a  person  of  an  evil  dispo- 
sition, and  devising  and  intending  by  nnlawfnl  ways  and  means  to 
obtain  and  get  into  liis  hands  and  possession  the  goods,  nieichandise, 
chattels  and  effects  of  the  honest  and  good  citizens  of  this  common- 
wealth, and  with  intent  to  cheat  and  defraud  C.  D.,  (tc,  did  then  and 
there  imlawfully,  knowingly  and  designedly,  falsely  pretend  and  re- 
present to  said  C.  D.,  {stating pretences);  and  the  said  C.  D.  then  and 

inference  is  inevitable  tliat  he  knew  whether  what  he  was  statintj  was  true  or  false,  and  on 
])roof  of  its  falsity,  his  ^uilt  might  be  legitimately  inferred,  unless  by  countervailing  testi- 
mony, he  can  sliow  that  lie  was  innocently  mistaken  in  the  representations  he  made.  There- 
fore it  is  not  a  material  fact  wiiich  the  prosecution  are  bound  to  state  in  the  indictment,  or 
prove  on  the  trial,  in  order  to  bring  the  case  within  the  act  of  184:2.  If  the  accused  could 
show  to  the  satisfaction  of  a  jury,  that  he  did  not  know  that  his  asseveration  of  facts  re- 
lating to  his  condition,  was  untrue,  it  perhaps  it  might  avail  him  as  a  defence  to  the  alle- 
gation in  the  bill,  of  an  intention  to  cheat  and  defraud,  for  that  is  the  essence  of  the  charge. 

"The  second  cause  assigned  for  the  demurrer,  is,  that  the  offence  set  forth  in  the  bill  is 
not  a  crime  under  the  laws  of  this  state.  In  ray  opinion  this  case  comes  within  the 
principles  laid  down  by  this  court  in  Com.  v.  Poulson,  6  L.  J.  272,  and  that  case 
must  he  considered  the  law  in  this  county,  until  it  is  reversed  by  a  higher  tribunal. 

"  The  indictment  charges  that  the  prisoner  did  falsely  pretend  that  he  and  his  brother 
Alexander,  trading  as  Dlumenthal  and  Brother,  were  then  doing  an  excellent  and  profitable 
business  at  Norfolk,  Virginia,  and  that  they  were  perfectly  solvent  and  prosperous.  Now  when 
we  have  it  admitted  upon  the  record  that  this  represeiitation  was  made  'devising  and  in- 
lending'  to  cheat  and  defraud  the  prosecutors  out  of  their  property,  that  the  wAoie  was  false 
and  untrue,  that  by  colour  and  means  of  said  false  pretence,  they  obtained  the  goods  men- 
tioned in  the  bill,  with  an  intent  to  cheat  and  defraud  the  prosecutors  and  to  their  damage, 
it  seems  to  me  that  it  is  a  pretence  within  the  meaning  of  the  statute,  and  to  hold  any  dif- 
ferent rule  would  tend  to  increase  the  frauds  against  which  the  act  intended  to  guard. 
When  we  are  told  by  the  Supreme  Court,  '  It  is  certain  that  a  fraudulent  misrepresenta- 
tion of  a  party's  means  and  resources  is  within  the  English  statutes,  and,  a  /oriior/,  within 
our  own,'  it  seems  to  me  such  a  false  statement  is  a  crime,  when  made  with  an  intention 
to  cheat  and  defraud  a  party  out  of  his  goods. 

'•  I  have,  after  mature  reflection,  seen  no  reason  for  retaining  the  rule  laid  down  in  the 
case  of  Poulson ;  that  opinion  was  formed  after  a  thorough  examination  of  the  law,  and  was 
tile  determination  of  the  whole  court,  and  one  by  which  we  are  all  bound  until  reversed  ; 
lior  shall  I  attempt  in  any  case  to  avoid  giving  full  effect  to  the  law  as  therein  settled. 
As  I  view  the  present  record  there  can  be  no  doubt  that  this  court  would  be  justified  in 
jjronouncing  sentence  upon  the  prisoner.  He  is  fully  apprised  of  all  lie  has  to  answer, 
and  after  admitting  all  which  is  stated  to  be  true,  there  can  be  no  question  but  that  such 
acts  are  a  violation  of  the  law.  Hence  judgment  must  be  entered  in  favour  of  the  common- 
wealth on  the  demurrer,  unless  it  is  withdrawn." 

This  is  all  very  vigorous  and  true,  and  though,  as  before  mentioned,  it  is  prudent  to  in- 
sert the  scienter  in  all  cases,  it  can  hardly  be  held  necessary  in  instances  in  which,  like 
that  just  noticed,  the  defendant  must  necessarily  have  been  conscious  of  the  falsity  of  his 
own  statement. 

{ir)  To  omit  to  aver  that  it  was  by  means  of  the  pretences  as  laid  that  the  property  was 
obtained,  is  fatal;  R.  v.  Airey,  2  East  30. 

(//)  The  "  obtaining  "  must  he  alleged  in  name;  State  v.  Bacon, 7  Verm.  219. 

(i)  It  is  necessary  that  the  property  obtained  should  be  described  with  the  same  accu- 
racy as  in  larceny.  Where  a  signature  to  a  note  has  been  obtained  by  false  pretences, 
and  the  party  defrauded  has  been  obliged  to  pay  the  note,  it  is  enough  to  charge  the  sum 
paid  to  have  been  obtained,  &.C.,  without  setting  forth  the  obtaining  of  the  signature ;  Peo- 
ple ?).  Horrick,  13  Wend.  87. 

ij)  The  indictment  must  state  the  goods  to  be  the  property  of  some  person  named,  and 
where  no  owner  is  laid  the  indictment  will  be  rpiashed ;  R.  v.  Parker,  3  A.  &.  E.  2.)2;  R. 
r  Norton,  8  C.  &,  P.  I'JG;  Slate  ».  Lathrop,  15  Verm.  R.  279;  R.  v.  Martin,  8  A.  &.  E. 
48I;3N.  &.  P.  472. 

(k)  This  is  essential  under  the  statutes. 

(/)  It  is  not  necessary,  as  it  has  been  laid  down  in  New  York  and  Massachusetts,  to 
aver  damage  to  the  prosecutor;  People  v.  Genung,  11  Wend,  Iti;  Com.  v.  Wilgus,  4  Picli. 
177. 


244  OFFEN'CES  AGAIXST  PROPERTY. 

there  believing  the  said  false  pretences  and  representations,  so  made 
as  aforesaid  by  the  said  A.  B.,  and  being  deceived  thereby  was  in- 
duced, by  reason  of  the  false  pretences  and  representations  so  made 
as  aforesaid,  to  deliver,  and  did  then  and  there  deliver  to  the  said  A. 
B.,  [statijig  goods),  of  the  proper  goods,  merchandise,  chattels  and 
effects  of  said  C.  D.,  and  the  said  A.  B.  did  then  and  there  receive 
and  obtain  the  said  goods,  merchandise,  chattels  and  effects  of  the 
said  C.  D.,  by  means  of  the  false  pretences  and  representations  afore- 
said, and  with  intent  to  cheat  and  defraud  the  said  C.  D.  of  the  same 
goods  and  merchandise,  chattels  and  effects ;  whereas  in  truth  and  in 
fact  {negativing  the  pretences) ;  and  so  the  jurors  aforesaid  upon 
their  oaths  aforesaid,  do  say  that  tiie  said  A.  B.,  by  means  of  the 
false  pretences  aforesaid,  on,  &c,,  at,  &c,,  unlawfully,  knowingly  and 
designedly  did  receive  and  obtain  from  said  C.  D.,  the  said  goods, 
merchandise,  chattels  and  effects  of  the  proper  goods,  merchandise, 
chattels  and  effects  of  the  said  C.  D.,  with  intent  to  defraud  C.  D.  of 
the  same,  against,  &c.     (Conclude  as  in  book  1,  chap.  3). 

Same  in  JVew  York. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  being  a  person  of  an  evil  dispo- 
sition, ill-name  and  fame  and  of  dishonest  conversation,  and  devising 
and  intending,  by  unlawful  ways  and  means,  to  obtain  and  get  into 
his  hands  and  possession  the  moneys,  valuable  things,  goods,  chat- 
tels, personal  property  and  eff'ects  of  the  honest  and  good  people  of 
the  State  of  New  York,  to  maintain  his  idle  and  profligate  course 
of  life,  on,  &c.,  at,  &c.,  with  intent  feloniously  to  cheat  and  defraud 
one  C.  D.,  did  then  and  there  feloniously,  unlawfully,  knowingly  and 
designedly,  falsely  pretend  and  represent  to  the  said  C.  D.,  that 
[stating  the  pretences),  and  the  said  C.  D.  then  and  there  believing 
the  said  false  pretences  and  representations  so  made  as  aforesaid,  by 
the  said  A.  B.,  and  being  deceived  thereby,  was  induced,  by  reason 
of  the  false  pretences  and  representations  so  made  as  aforesaid,  to 
deliver,  and  did  then  and  there  deliver  to  the  said  A.  B.,  {stating 
goods),  of  the  proper  moneys,  valuable  things,  goods,  chattels,  per- 
sonal property  and  eff'ects  of  the  said  C.  D.,  and  the  said  A.  B.  did 
then  and  there  designedly  receive  and  obtain  the  said,  &c.,  of  the 
said  C.  D.,  of  the  proper  moneys,  valuable  things,  goods,  chattels, 
personal  property  and  eff'ects  of  the  said  C.  1).,  by  means  of  the  false 
pretences  and  representations  aforesaid,  and  with  intent  feloniously 
to  cheat  and  defraud  the  said  C.  D.  of  the  said,  &c.,  whereas  in  truth 
;iii(l  in  fact  the  said  {ncgativi)ig  pretences);  and  whereas  in  fact  and 
in  truth  the  pretences  and  representations,  &c.,  so  made  as  aforesaid, 
by  the  said  A.  B.  to  the  said  C.  I).,  was  and  were  in  all  respects 
utterly  false  and  untrue,  to  wit,  on  the  day  and  year  last  aforesaid, 
at  the  ward,  city  and  county  aforesaid;  and  whereas  in  fact  and  in 
tiuth  the  said  A.  B.  well  knew  the  said  ])retenccs  and  representations 
so  l)y  him  made  as  aforesaid  to  the  said  C.  D.,  to  be  utterly  false  and 
untrue  at  the  time  of  making  the  same. 

And  so  the  jurors  aibresaid,  upon  their  oath  aforesaifl,  do  say,  that 
the  said  A.  ii.,  by  means  of  the  lalse  pretences  aforesaid,  on  the  day 


FALSE  PRETENCES.  245 

and  year  last  aforesaid,  at  the  ward,  city  and  county  aforesaid,  felo- 
niously, unlawfully,  falsely,  knowingly  and  designedly  did  receive 
and  obtain  from  the  said  C.  D.,  of  the  proper  moneys,  valuable  things, 
goods,  chattels,  personal  property  and  effects  of  tlie  said  C.  D.,  with 
intent  feloniously  to  cheat  and  defraud  C.  D.  of  the  same,  against, 
dec.     {^Conclude  as  in  book  1,  chap.  3). 

Pretence  that  defendant  ivas  agent  of  a  lottery,  ^'C.{?n) 

That  A.  W.  W.,  &c.,  on,  &c.,  at,  &c.,  being  a  wicked  and  evil  dis- 
posed person,  and  a  common  cheat,  and  contriving  and  intending 
fraudulently  and  deceitfully  to  cheat  and  defraud  one  E.  H.  of  his 
moneys  and  property,  on,  &c.,  falsely  and  fraudulently  did  know- 
ingly and  designedly  pretend  to  the  said  E.  H.,  that  his  name  was  H. 
C,  that  he  was  an  agent  for  the  managers  of  a  certain  lottery,  called 
The  Maryland  Grand  State  Lottery,  and  that  he  had  a  number  of 
quarters  of  tickets  in  said  lottery,  and  then  and  there  exhibited  a  great 
number  of  quarters  of  tickets  in  said  lottery,  signed  H.  C,  with  the 
numbers  of  the  original  tickets  in  said  lottery  written  therein,  and 
then  and  there  falsely  and  fraudulently  did  knowingly  and  designedly 
pretend  that  the  said  quarters  of  tickets  were  true  and  genuine,  and 
that  lie  had  the  original  tickets  corresponding  with  the  numbers  of 
the  said  quarters  of  tickets  then  deposited  in  a  bank  in  Boston, 
whereas  in  truth  and  in  fact,  his  true  name  was  A.  W.  W.,  and  not 
H.  C,  as  he  falsely  pretended,  and  in  truth  and  in  fact  he  was  not, 
and  never  was  an  agent  for  the  managers  of  the  lottery  called  The 
Maryland  Grand  State  Lottery,  and  the  said  quarters  of  tickets  so  ex- 
hibited by  the  said  A.  W.  W.  were  not  genuine  parts  of  original 
tickets  in  said  lottery,  but  were  spurious  and  fabricated  for  the  sole 
purpose  to  deceive,  defraud  and  injure,  and  he  had  not  and  never  had 
in  his  possession,  nor  deposited  in  any  bank  the  original  and  genuine 
tickets  corresponding  to  the  numbersof  said  quarters  of  tickets  so  exhi- 
l)ited  to  the  said  E.  H.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present,  that  the  said  A.  W.  W.,  on  the  day  and  year  last 
aforesaid,  at  said  Cambridge,  in  the  county  aforesaid,  by  the  false 
tokens  and  pretences  aforesaid,  falsely  and  fraudulently  did  knowing- 
ly and  designedly  obtain  and  get  into  his  possession  from  the  said  E. 
H.  fifteen  dollars,  of  the  moneys  and  property  of  the  said  E.  H.,  with 
the  intent  him  the  said  E.  H.  then  and  there  to  cheat  and  defraud  of 
the  same,  to  the  great  damage  of  the  said  E.  H.,  in  evil  example  to 
others  in  like  case  to  offend,  against,  &c.,  and  contrary,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

Pretence  that  defendant  teas  Mr,  H.,  who  had  cured  Mrs.  C.  at  the 
Oxford  Infirjnanj,  whereby  he  induced  the  prosecutor  to  buy  a  bottle 
of  ointment,  ^-c,  for  ichich  he  received  a  sovereign,  giving  I5s.  in 
change.{n) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  did  unlawfully  and  falsely  pre- 

(m")  Sec  Com.  v.  Wilgus,  4  Pick.  177,  wlicic  this  count  was  licid  frood. 
(/;)  R.  V.  Bloorntiuld,   I  t'.  tSc  AI.  537,     The  defendant  was  convicted  before  Crcswcll  J., 
at  the  sessions,  and  sentence  passed  ;  sec  ante,  p.  240. 

21^ 


i^lG  OFFKXCRS  AGAINST  PROrERTY. 

tend  to  one  C,  the  wife  of  G.  P.,  that  he,  the  said  I).  B.  was  M.  H., 
and  that  lie  was  the  same  person  that  had  cured  Mrs.  C.  at  the  Ox- 
ford Infirmary;  by  means  of  which  said  false  pretence,  he  the  said  D. 
B.  did  then  and  there  obtain  from  the  said  G.  P.,  the  husband  of  the 
said  C.  P.,  one  piece  of  the  current  gold  coin  of  this  realm  called  a 
sovereign,  of  the  moneys,  goods  and  chattels  of  the  said  G.  P.,  with 
intent  then  and  there  to  cheat  and  defraud  him  the  said  G.  P.  of  the 
sum  of  five  shillings,  parcel  of  the  value  of  the  said  last  mentioned 
piece  of  the  current  gold  coin,  whereas  in  truth  and  in  fact,  &c.  [ne- 
gativing the  false  pretences,  and  proceeding  as  in  general  frame). 

Against  a  member  of  a  benefit  club  or  society,  for  obtaining  money  be- 
longing to  the  rest  of  the  members  under  false  jpretences.^o) 

That  on,  &c.,  at,  &c.,  certain  persons  united  together  and  formed 
tiiemselves  into  a  certain  lawful  and  beneficial  club  or  society,  called, 
&c.  {as  the  name  may  be),  under  certain  printed  articles,  rules, 
orders  or  regulations,  made  lor  the  good  order  and  government  of  the 
said  club  or  society,  (which  said  articles,  rules,  &c.,  were  afterwards, 
to  wit,  at  the  General  Quarter  Sessions  of  the  Peace,  holden  at  in 
the  county  of  aforesaid,  duly  exhibited,  confirmed  and  filed,  accord- 
ing to  the  statute  in  such  case  made  and  provided),  and  then  and 
there,  and  on  divers  other  days  and  times,  between  that  day  and  the 
third  of  May,  in  the  twenty-ninth  year,  &c.,  contributed  and  paid 
divers  large  sums  of  money,  amounting  in  the  whole  to  a  large  sum 
of  money,  to  wit,  the  sum  of  one  hundred  pounds  and  upwards,  of 
lawful  money  into  the  said  club  or  society,  and  deposited  the  same  in 
a  certain  box,  left  in  the  dwelling  house  of  one  T.  R.  at  K.  aforesaid, 
commonly  called  or  known  by  the  name  or  sign  of,  &c.,  {as  it  may 
be),  and  there  kept  for  the  use,  benefit  and  advantage  of  the  members 
of  the  said  club  or  society  at  the  time  being.  And  the  jurors,  &c.,  do 
further  present,  that  in  and  by  a  certain  article  of  the  said  rules  and 
orders  of  the  said  club  or  society,  it  is  declared,  ordered  and  agreed 
that,  &c,,  {here  recite  the  article  relating  to  the  payment  of  money, 
towards  the  funerals  of  the  members''  ivives).  And  the  jurors,  &.C., 
that  on  the  same  day  and  year  last  aforesaid,  at,  &c,,  aforesaid,  one 
L.  P.,  late  of,  &c.,  one  A.  B.  and  one  C.  D.,  &c.,  {here  insert  the 
rest  of  the  members^  names  which  appear  by  the  clnb  book  to  be 
ea:isting  at  this  ti?ne),  were  members  of  the  said  club  or  society, 
contributing  and  paying  money  into  and  for  the  use  of  the  said  club 
or  society,  that  is  to  say,  for  the  general  benefit  and  advantage  of  all 
members  thereof,  at  the  said  house  of  the  said  T.  R.,  for  the  purpose, 
amongst  other  things,  mentioned,  declared  and  contained  in  the  said 
article  above  mentioned  and  set  forth.  And  the  jurors,  &c.,  do  fur- 
ther present,  that  on,  &c.,  last  aforesaid,  at,  &c.,  aforesaid,  a  large 
sum  of  money,  to  wit,  the  sum  of  one  hundred  pounds,  (this  need  not 
be  the  exact  sum,  let  it  be  something  under  the  sum  contained  in 
the  box  at  this  time),  of  like  lawful  money,  was  and  remained  in  the 
said  box,  kept  for  the  purpose  in  that  behalf  aforesaid,  in  the  said 

(«)  Dickinson'ts  Q.  S.  CUi  cd.  33G. 


FALSE   PRETENCES.  247 

Iiouse  of  the  said  T.  R.,  there  before  then  deposited  therein,  by  and 
for  and  on  behalf  of  all  the  members  of  the  said  club  or  society.  And 
the  jurors,  &c.,  do  further  present,  that  by  the  assent  and  concurrence 
of  all  the  members  of  the  said  club  or  society,  it  had  been  usual  and 
customary  during  all  the  time  aforesaid,  (except  the  nights  on  which 
the  said  club  or  society  had  been  there  holden),  for  the  members  of 
the  society,  having  a  right  or  occasion  to  withdraw,  or  receive  any 
money  to  which  they  had  been  entitled  by  the  articles,  rules  and 
orders  of  the  said  club  or  society,  from  and  out  of  the  said  box,  to 
apply  to  the  said  T.  R.  for  the  payment  of  the  same,  upon  condition 
that  he  the  said  T.  R,  should  be  repaid  the  same  from  and  out  of 
such  money  contained  in  the  said  box,  for  the  purpose  in  that  behalf 
aforesaid,  on  some  subsequent  night  on  which  the  said  club  or  society 
should  be  holden  at  the  said  house  of  him  the  said  T.  R.,  at  K.,  afore- 
said. And  the  jurors,  &c.,  that  the  said  L.  P.,  so  being  such  member 
as  aforesaid,  and  well  knowing  all  and  singular  the  premises  afore- 
said, on,  &c.,  at,  &c.,  aforesaid,  unlawfully,  knowingly  and  design- 
edly did  falsely  pretend  to  the  said  T.  R.  that  the  wife  of  him  the 
said  L.  P.  was  then  dead,  and  that  he  the  said  L.  P.  then  wanted 
thirty  shillings  to  bury  his  said  wife,  by  means  of  which  said  false 
])retences  he  the  said  L.  P.  then  and  there  unlawfully,  knowingly 
and  designedly  did  obtain  of  and  from  the  said  T.  R.  the  said  sum  of 
thirty  shillings,  with  intent  then  and  there  to  cheat  and  defraud  the 
said  A.  B.,  C.  D.,  &c.,  {the  other  members  of  the  club),  of  the  same, 
whereas  in  truth  and  in  fact,  the  wife  of  him  the  said  L.  P.  was  not 
dead  at  the  said  time  he  so  made  the  false  pretences  to  the  said  T.  R. 
as  aforesaid  ;  and  whereas,  in  truth  and  in  fact,  he  the  said  L.  P.,  at 
the  time  of  the  false  pretences,  did  not  want  the  said  sum  of  thirty 
shillings,  or  any  sum  of  money  whatsoever  for  the  purpose  of  burying 
his  wife,  or  any  person  whatsoever,  having  then  lately  then  been  the 
wife  of  him  the  said  L.  P.,  against,  &c.,  and  against,  &.c.  {Conclude 
as  in  book  1,  chajj.  3). 

Another  form  fur  same,  coupled  with  a  'production  to  the  society  of  a 
false  certificate  of  burial.     First  count.    {In  substance).{p) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  unlawfully  did  falsely  pretend  to 
F.E.,  that  the  wife  of  him  the  said  R.  D.,  was  then  dead.  By  means  of 
which  he  obtained  from  the  said  F.  E.  silver  coin  to  the  amount  of  three 
))Ounds  fifteen  shillings,  of  the  moneys  of  the  said  F.  E.,  with  intent 
to  defraud  F.  E.,  whereas  in  truth  and  in  fact  the  said  wife  of  the 


(p)  R.  V.  Dent,  1  C.  &  K.  249.  After  a  conviction  on  this  indictment,  a  motion  for 
arrest  of  judgment  was  refused.  It  appeared  that  the  money  of  a  benefit  society,  whose 
rules  were  not  enrolled,  was  kept  in  a  box,  of  whicli  E.  one  of  the  stewards  and  two  others 
had  keys.  The  defendant,  on  the  false  pretence  that  his  wife  was  dead,  which  pretence 
he  made  to  the  clerk  of  the  society  in  the  hearing  of  E.,  obtained  from  the  hands  of  E.  out 
of  the  box,  £5.  It  was  held,  that  in  an  indictment  the  pretence  might  be  laid  as  made  to 
IC,  and  the  money,  the  property  of  "  E.  and  others,"  obtained  from  E.  The  first  count 
describes  the  wife  of  the  defendant,  and  the  third  count  mentions  "the  said  wife"  of  the 
defendant.  It  was  ruled,  that  tiie  third  count  suificiently  referred  to  the  peison  mentioned 
as  his  wife  in  the  fiist  count. 


248  OFFE.NXES  AGAIXST   PROPERTY. 

said  R.  D.  was  not  then  dead,  as  he  t[ie  said  R.  D.  then  well  knew,  &c. 

[The  second  count  was  similar,  onhj  adding  all  through  it  the 
tcords  "and  others,"  after  the  name  of  F.  E.) 

Third  count.     {In  fid/). 

That  before  and  at  the  time  of  the  committing  of  the  offence  in  this 
count  mentioned,  to  wit,  &c.,  there  was  a  certain  friendly  society 
commonly  called  "  The  George  and  Dragon  Friendly  Society,"  and 
that  the  said  R.  D.  was  then  and  there  a  free  member  of  the  said  so- 
ciety, and  that  by  the  rules  of  the  said  society  it  was  amongst  other 
things  provided,  that  when  any  free  member's  wife  dies,  such  member 
shall  be  allowed  five  pounds  out  of  the  society's  stock,  to  wit,  at,  &c. 

That  before  and  at  the  time  of  the  committing  the  offence  in  this 
count  mentioned,  to  wit,  &c.,  the  said  F.  E.  was  one  of  the  stewards 
of  the  said  society. 

That  the  said  R.  D.  being  such  member  of  the  said  society  as  afore- 
said, &c.,  on,  &c,,  at,  &c.,  did  produce  to  the  said  F.  E.,  so  being 
such  steward  as  aforesaid,  a  certain  paper  writing  directed  to  one 
G.  H.  S.  G.,  near  Bristol,  paid;  and  which  said  paper  writing  then 
was  in  the  words  and  figures  following,  that  is  to  say  : 

"London,  November  the  8th,  1843. 

((  Sir — I  received  your  letter  this  morning,  and  was  sorry  to  state 
that  we  did  not  send  the  particulars  to  you  in  the  last  letter  we  sent. 
She  (meaning  the  said  wife  of  the  said  R.  D.),  died  October  18th,  and 
was  buried  on  Monday  23d,  at  -the  Baptis  (meaning  Baptist),  Chap- 
pell,  in  New  Pye  Street,  Westminster,  London.  I  hope  this  will  find 
you  in  perfect  health,  as  it  leaves  us  all  at  present.  So  I  conclude, 
with  kind  love  to  you  and  all  her  inquiring  friends.  Please  to  deliver 
this  to  Mr.  R.  D. 

"This  is  to  certify,  that  L,  T.  H.  N.,  atended  (meaning  attended), 
the  funeral  of  M.  D.,  on  the  23d  day  of  October,  being  the  minister 
of  the  Baptist  Chappell,  in  New  Pie  Street,  Westminster,  London." 

That  the  said  R.  D.,  so  being  such  free  member  of  the  society  as 
aforesaid,  then  and  there  unlawfully,  knowingly  and  designedly,  did 
falsely  pretend  to  the  said  F.  E.,  so  being  such  steward  of  the  said 
society  as  aforesaid,  that  the  said  paper  writing  was  a  true,  correct 
and  genuine  ]iaper  writing,  and  that  tlie  same  contained  a  true,  cor- 
rect and  genuine  account  of  the  death  of  the  said  wife  of  the  said  R. 
B.,  and  of  her  burial  at  the  Baptist  chaj)el,  in  New  Pye  Street,  West- 
minster, London  ;  and  that  the  said  R. !).,  so  being  such  free  member 
as  aforesaid,  did  then  and  there  further  unlawfully,  knowingly  and 
designedly,  falsely  pretend  to  the  said  F.  E.,  so  being  such  steward 
of  the  said  society  as  aforesaid,  that  the  said  wife  of  the  said  R.  D. 
was  then  dead,  and  that  he  the  said  R.  B.,  as  such  free  member  as 
aforesaid,  was  then  and  there  entitled  to  receive  from  the  stewards  of 
the  said  society  the  sum  of  five  pounds,  under  and  by  virtue  of  the  rules 
of  said  society,  in  consequence  of  the  death  of  his  said  wife.  By  means 
of  which  said  last  mentioned  false  pretence,  the  said  R.  B.  did  then  and 
there  unlawfully  obtain  from  the  said  F.  E.  two  pieces  of  the  current 
silver  coin  of  this  realm,  called  crowns  (describing  silver  and  copper 
coins  to  the  amount  o/three  |)0uuds  fiCteen  shillings),  of  the  monc^ys 
of  the  said  F.  E.  and  others,  with  iniunl  then  and  there  to  cheat  and  du- 


FALSE    PRETEXCKS.  249 

fraud  the  said  F.  E.  and  others  of  the  same;  whereas  in  truth  and  in 
fact,  the  said  paper  writing  was  not  a  true,  correct  or  genuine  paper 
writing  ;  and  whereas  in  truth  and  in  fact,  the  said  paper  did  not  con- 
tain a  true,  correct  or  genuine  account  of  the  death  of  the  said  wife  of 
the  said  R.  D.,  or  of  her  burial  at  the  Baptist  chapel,  New  Pye  Street, 
Westminster,  London;  and  whereas  in  truth  and  in  fact,  the  said  wife 
of  the  said  R.  D.  was  not  then  dead  ;  and  whereas  in  truth  and  in 
fact,  the  said  R.  D.,  as  such  free  member  as  aforesaid,  was  not  then 
entitled  to  receive  from  the  stewards  of  the  said  society  the  sum  of 
five  pounds,  or  to  any  other  sum  whatever,  under  and  by  virtue  of 
the  said  rules  of  the  said  society,  in  consequence  of  the  death  of  his 
said  wife. 

That  the  said  R.  D.  well  knew,  at  the  time  when  he  did  so  falsely 
pretend  as  last  aforesaid,  that  each  and  every  of  the  said  pretence 
were  false,  to  wit,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
against,  &c.,  and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Pretence  that  a  broken  bank  note  was  good.{q) 

That  J.  S.,  &c.,  on,  &c,,  at,  &c.,  being  a  person  of  evil  disposition, 
and  contriving  and  intending  unlawfully,  fraudulently  and  deceitfully 
to  cheat  and  defraud  one  H.  S.  G.,  an  honest  and  worthy  citizen  of 
the  commonwealth,  on,  &c.,  did  falsely,  knowingly,  unlawfully  and 
designedly  pretend  to  the  said  H.  S.  G.,  that  a  certain  note,  partly 
written  and  partly  printed,  which  he  the  said  J.  S.  then  and  there 
produced  and  delivered  to  the  said  H.  S.  G.,  and  which  said  note  was 
and  is  as  follows,  that  is  to  say,  {here  set  out  note),  was  a  good  and 
valuable  promissory  note  for  the  payment  of  money,  called  a  bank 
note,  issued  by  the  Commercial  Bank  of  Millington,  and  that  the  said 
Commercial  Bank  of  Millington  was  a  good  and  solvent  bank ;  by 
means  of  which  said  false  pretences  the  said  J.  S.  did  then  and  there 
unlawfully  obtain  from  the  said  H.  S.  G.  one  rifle  of  the  value  of  nine 
dollars,  lawful  money,  of  the  property  of  him  the  said  H.  S.  G.,  and 
one  dollar  lawful  money  of  the  moneys  of  him  the  said  H.  S.  G.,  with 
intent  to  cheat  and  defraud  him,  the  said  H.  S.  G.,  of  the  same. 
Whereas  in  truth  and  in  fact,  the  said  promissory  note  for  the  pay- 
ment of  money,  called  a  bank  note,  issued  by  the  Commercial  Bank 
of  Millington,  was  not  a  good  and  valuable  promissory  note  for  the 
payment  of  money,  and  was  of  no  value  whatever.  And  whereas 
in  truth  and  in  fact,  the  said  Commercial  Bank  of  Millington  was  not 
a  good  and  solvent  bank,  which  he  the  said  J.  S.  then  and  there  at 
the  time  of  the  false  pretences  aforesaid  well  knew,  to  the  great 
damage  and  deception  of  the  said  H.  S.  G.,  to  the  evil  example  of  all 
others  in  like  case  offending,  contrary,  &.C.,  and  against,  &:c.  {Con- 
clude as  in  book  1,  chap.  3). 

{q)  This  form  is  given  by  Judge  Lewis,  in  his  excellent  work  on  Criminal  Law,  p.  647. 
See  R.  B.  Philpotts,  1  C.  it  K.  112;  and  see  also  particularly,  ante,  p.  239-40. 


250  OFFENCES  AGAINST  PROPERTV. 

Pretence  thai  a  7corthIess  check  made  by  the  defendant  was  good.(r) 

That  A.  B.,  &c.,  on,  &:c.,  at,  &c.,  being  a  person  of  a  deceitful  and 
subtle  mind  and  disposition,  and  intending  to  cheat  and  defraud  one 
W.  M,,  did  unlawfully,  falsely  and  wickedly  pretend  to  the  said  W. 
M.,  that  a  certain  paper  writing,  which  he  the  said  defendant  then 
and  there  produced  to  the  said  W.  M.,  and  wliich  was  as  follows : 

"£25.  6th  January,  1837. 

To  JNIessrs.  S.  &  Co.,  bankers,  Bristol.  Pay  the  bearer  twenty-five 
pounds.  R.  C.  C.  S.  P." 

was  a  good  and  genuine  order  for  the  payment  of  the  said  twenty- 
five  pounds,  and  of  the  value  of  twenly-five  pounds;  whereas  in 
truth  and  fact  [negativmg  the  pretence),  which  he  the  said  defend- 
ant then  and  there  well  knew,  by  means  of  which  said  false  pretence, 
&c.  {stating  the  thing  obtained). 

Another  form  for  same. 

Th.at  A.  B.,  &c.,  on,  &c.,  at,  Sec,  did  go  to  a  certain  shop  of  one  B. 
M.  there  situate,  and  then  and  there  unlawfully,  knowingly  and  .de- 
signedly did  falsely  pretend  to  the  said  B.  M.,  that  if  he  the  said  B. 
M.  would  send  a  pair  of  candlesticks  of  him  the  said  B.  M.  (which 
the  said  B.  M.  then  showed  to  the  said  A.  B.),  the  next  day  to  him 
the  said  A.  B.,  to  his  lodgings  at,  &c.,  with  a  bill  and  receipt,  that  he 
the  said  A.  B,  would  pay  for  them  upon  the  delivery,  by  giving  said 
B.  M.  an  order  for  the  payment  of  money  which  he  the  said  A.  B. 
then  and  there  falsely  pretended  was  in  his  possession,  by  means  of 
which  said  false  pretence  he  the  said  A.  B.,  afterwards,  to  wit,  on, 
&c.,  aforesaid,  at,  &c.,  aforesaid,  unlawfully,  knowingly  and  design- 
edly did  obtain  from  the  said  B.  JNl.,  one  pair  of  candlesticks  of  the 
value  of,  itc,  of  the  goods,  wares  and  merchandises  of  him  the  said 
B.  jNL,  with  intent  then  and  there  to  cheat  and  defraud  him  of  the 
same ;  whereas  in  truth  and  in  fact  when  he  the  said  B.  M.,  on  the 
day  and  year  aforesaid,  sent  the  said  goods,  &c,,  to  the  said  lodgings 
of  him  the  said  A.  B.,  at,  &c.,  aforesaid,  with  a  bill  and  receipt,  he 
the  said  A.  B.  did  not  pay  for  them  ui)on  the  delivery  by  a  valid  or- 
der for  the  payment  of  money  or  otherwise,  but  did  then  and  there 
unhtwfully,  knowingly,  designedly,  fraudulently  and  deceitfully  de- 
liver to  \V.  J.,  a  servant  of  iiim  the  said  B.  M,,  sent  by  the  said  B.  M. 
to  the  said  A.  B.  with  the  said  goods,  &c.,  and  who  delivered  the' 
same  to  him  with  a  bill  and  receipt,  a  certain  paper  writing  purport- 
ing to  be  an  order  for  payment  of  money,  subscribed  A.  B.{s),  pur- 
porting to  bear  date  the,  &c.,  and  to  be  directed  to  P.  and  Q.,  bankers 
and  partners,  by  the  name  and  description  of,  &c.,  for  the  payment, 
of,  &.C,,  to  Messrs.  R.  and  M.,  or  bearer,  he  the  said  A.  B.  then  and 
there  well  knowing{s)  the  same  to  be  ol'no  value,  and  that  the  same 

fr)  H.  V.  Tarkcr,  7  C.  «fe  P.  825,  This  is  flic  substance  of  tiie  fourth  count  in  this  case, 
on  which  a  majority  of  the  judges  licld  tlie  conviction  riirht. 

in)  It  must  \h:  shown  tobe  A.  IJ.'s  handwriting,  and  that  he  knew  it  to  he  wortiilcss  ; 
Wickbnm  v.  The  Queen  (in  error),  10  A.  &,  H.  WX;  2  Per.  &.  Da.  333,  S.  C. ;  K.  v.  lliil- 
polls,  C.  &,  K.  112;  see  R.  v.  Jackson,  Dickinson's  Q.  S.  332,  n. 


FALSE   PRETEXCES.  251 

would  not  bo  paid.  And  wliersas  in  trutli  and  in  fact  the  said  A, 
13.  had  not,  at  the  tinie  of  the  t'alse  pretence  aforesaid,  in  his  ]'»osses- 
sion  or  power,  any  vahd  order  for  the  payment  of  money  whatso- 
ever, against,  &c.,  and  against,  &,c.    [Conclude  as  in  book  1,  chap.  3). 

Second  count. 

And  the  jurors,  &c.,  that  the  said  A.  B.,  on,  &c.,  did  fraudulently 
inform  and  promise  the  said  B.  M.,  that  if  he  the  said  B.  M.  would 
send  a  pair  of  candlesticks  of  the  said  B.  M.,  which  he  the  said  B. 
M.  then  showed  to  the  said  A.  B.,  the  next  day  to  him  the  said  A.  B. 
to  his  lodgings  at,  &c.,  with  a  bill  and  receipt,  that  he  the  said  A.  B. 
would  pay  for  them  upon  the  delivery.  And  the  jurors,  &c.,  that  the 
said  A.  B.,  did  then  and  there,  to  wit,  on,  &c.,  at,  etc.,  deliver  to  W. 
J.,  then  being  the  servant  of  the  said  B.  M.,  and  then  having  the  said 
candlesticks  in  his  possession,  a  certain  paper  writing  purporting  to 
be  an  order  for  payment  of  money,  subscribed,  &c.  {as  in  last  count), 
and  then  and  there  unlawfully,  knowingly  and  designedly  did  falsely 
pretend  to  the  said  W.  J.,  that  he  the  said  A.  B.  then  kept  cash  with 
the  said  P.  and  Q.,  and  that  they  wefe  then  his  bankers,  and  that  the 
sum  of,  &c.,  mentioned  in  the  said  paper  writing,  purporting  to  be  an 
order  for  payment  of  money,  would  be  duly  paid  by  them  ;  by  means 
of  which  said  last  mentioned  false  pretences,  the  said  A.  B.  did  then 
and  there,  to  wit,  at,  &c.,  unlawfully,  knowingly  and  designedly  ob- 
tain from  the  said  W.  J.,  one  pair  of  candlesticks  of  the  value,  &c., 
the  goods,  &c.,  of  the  said  B.  JNI.,  with  intent  then  and  there  to  de- 
fraud him  of  the  same ;  whereas  in  truth  and  in  fact,  the  said  A.  B. 
did  not  then  keep  cash  with  P.  and  Q.,  nor  were  they  then  his  bank- 
ers, nor  was  the  sum  of,  etc.,  mentioned  in  the  said  paper  writing, 
purporting  to  be  an  order  for  payment  of  money,  duly  paid  by  them, 
or  hath  the  same,  or  any  part  thereof  been  paid  by  them  or  him  the 
said  A.  B.,  or  any  person  or  persons  whomsoever;  and  whereas,  in 
truth  and  in  fact,  the  said  A.  B.  then  and  there  well  knew  that  the 
said  paper  writing,  purporting  to  be  an  order  for  payment  of  money, 
was  of  no  value,  and  was  fabricated  by  him  on  purpose  to  cheat  and 
defraud  the  said  A.  B.,  and  that  the  sum  of  money  therein  mentioned 
would  not  be  paid,  against,  &c.,  and  against,  &c.  {Conclude  as  in 
book  1,  chajj.  3). 

Pretence  that  defendant  icas  the  agent  of  A.  B,,  and  as  such  had  been 
sent  by  A.  B.  to  C.  D.,  to  receive  certain  money  due  from  the  latter  to 
tke  former.{t) 

That  F.  C,  &c.,  on,  &c.,  at,  &c.,  being  a  person  of  an  evil  disposi- 
tion, and  devising  and  intending  by  unlawful  ways  and  means  to 

(t)  This  form  was  sustained  in  Com.  v.  Call,  21  Pick  515.  Morton  J.,  said,  "This  in- 
dictment is  founded  on  the  Rev.  Stat.  c.  126,  s.  32,  which  provides,  that  if  any  person 
shall  designedly,  by  any  false  pretence,  and  with  intent  to  defraud,  obtain  from  any  other 
person,  any  money,  goods,  wares,  merchandise  or  otlier  property,  he  shall  be  punished,  &,c. 

"  The  indictment  clearly  brings  the  offence  within  the  interdiction  of  tiie  statute,,  and 
indeed,  uses  all  the  substantive  words  of  the  statute  itself.  It  alleges  that  tlie  defendant 
'  desi'rnedly,''  'with  an  intent  to  defraud,'  ^  bij  false  pretences,'  (fully  setting  them  forth), 
(i]d  '  obtain'  certain  money.  These,  with  other  necessary  allegations  to  show  who  was 
intended  to  be  and  actually  was  defrauded,  who  was  intended  to  be  and  actually  was  de- 
ceived, and  whose  was  the  money  obtained,  most  ccrt;iinly  contain  every  averment  which 


252  OFFENCES  AGAINST  PROPERTY. 

obtain  andfget  into  Iiis  liands  and  possession,  the  goods,  merchandise, 
("hattels  and  cliects  of  the  honest  and  good  citizens  of  this  connnon- 
weulth,  and  with  intent  to  cheat  and  defraud  one  A.  W.  and  one  G. 
S.,  of  their  money,  did  then  and  there  unlawfully,  knowingly  and 
designedly,  falsely  pretend  and  represent  to  one  C.  A.  P.,  a  person 
who  owed  a  sum  to  said  W.  and  S.,  to  wit,  the  sum  of  eleven  dollars 
and  sixty-three  cents,  that  he  the  said  C,  then  and  there  was  an 
authorized  collector  and  a  servant  of  said  W.  and  S.,  that  said  W.  and 
S.  had  employed  and  sent  him  to  collect  and  receive  for  them  said  sum 
of  money  so  due  as  aforesaid,  and  owed  by  the  said  C.  A.  P.  to  them. 
And  the  said  C.  A.  P.,  then  and  there  believing  the  said  false  pre- 
tences and  representations  so  made  as  aforesaid  by  the  said  C,  and 
being  deceived  thereby,  was  induced  by  reason  of  the  false  pretences 
and  representations  so  made  as  aforesaid,  to  deliver,  and  did  then  and 
there  deliver  to  the  said  F,  C,  the  sum  of  eleven  dollars  sixty-three 
cents  due  and  owing  from  him  said  P.,  to  said  W.  and  S.,  of  tlie  proper 
money  and  efiects  of  said  P.,  due  and  owing  as  aforesaid  to  said  W. 
and  S.,  and  the  said  C.  did  then  and  there  receive  and  obtain  the  said 
money  and  effects  of  the  said  P.,  due  and  owing  as  aforesaid  to  said 
W.  and  S.,  by  means  of  the  false  pretences  and  representations  afore- 
said, and  with  the  intent  to  cheat  and  defraud  the  said  P.  and  said 
W.  and  S.  of  the  same  money  and  efiects;  whereas  in  truth  and  in 
fact  said  F.  C,  then  and  there  was  not  an  authorized  collector  and  a 
servant  of  said  W.  and  S,,  and  the  said  W.  and  S.  had  not  then  and 


can  be  needed  '  fully  and  plainly,  substantially  and  formally'  to  describe  the  offence  of 
wliich  the  defendants  stand  indicted. 

"  The  objection  to  the  indictment,  that  it  alleges  an  intent  to  defraud  one  person,  and 
that  false  pretences  vvere  practised  upon  another;  tliat  one  man  was  deceived  and  his 
money  obtained,  and  anotlier  defrauded.  Tiie  facts  reported  clearly  sliow  that  these  alle- 
gations are  the  only  ones  which  would  meet  the  prtjof;  and  that  if  tliis  indictment  cannot 
be  sustained,  a  gross  fraud  may  be  practised  within  the  words  of  the  statute,  and  yet  not 
be  liable  to  punishment  under  it.  A  combination  of  facts  has  here  occurred,  and  may 
occur  again,  wliere  a  deception  has  been  practised  upon  one  person,  and  his  property  ob- 
tained, and  tiie  loss  has  fallen  upon  another,  tiie  intention  being  to  defraud  him.  This  is 
clearly  within  the  mischief  intended  to  be  guarded  against,  and,  we  have  no  doubt,  within 
the  effective  |>rohibition  of  the  statute. 

"This  indictment  would  njanifestly  be  bad  at  common  law,  because  the  obtaining  pro- 
perty by  false  pretences  is  not  an  otTence  punishable  at  common  law.  But  had  false 
tokens,  one  of  the  means  of  deception  mentioned  in  this  statute,  been  used,  it  is  contended 
that  the  indictment  would  still  be  defective  by  the  rules  of  tiie  common  law,  because  the 
allegation  that  one  was  deceived,  and  another  defrauded,  is  repugnant,  absurd  and  suicidal. 
And  the  case  of  the  King  «.  Lara,  2  Leach  73!),  is  relied  ujwn  as  deciding  this  point.  Tliat 
case,  which  certainly  seems  to  be  directly  in  point,  was  an  old  Hiiilcy  trial,  in  which,  ac- 
cording to  the  report,  the  decision  appears  to  liave  been  made  by  the  jury,  rather  than  the 
bench.  At  most  it  was  a  hasty  ruling,  during  a  criminal  trial,  in  a  tribunal  more  remark- 
able for  its  ])roin[)titude  tiian  its  deliberation  in  such  trials;  it  never  received  a  revision, 
and  is  not  entitled  to  much  respect. 

"  Hut  without  stopjiing  to  inquire  whether  such  an  indictment  would  be  good  at  com- 
mon law  or  not,  we  arc  all  satisfied  that  this  is  a  good  indictment  under  the  statute. 

"  The  grammatical  and  critical  objections,  however  ingenious  and  acute  they  may  be, 
cannot  prevail.  The  age  has  gone  by  when  bad  Latin  or  even  bad  English,  so  it  be  suffi- 
ciently intelligible,  can  avail  against  an  indictment,  declaration  or  plea.  The  passage 
objected  to  may  be  somewhat  obscure,  hut  by  a  refijrence  to  the  context,  is  capable  ot  a 
pretty  certain  inter|)retation.  The  pronoun  Ihciii  must  be  referred  to  tliat  antecedent  to 
which  the  tenor  of  the  instrument  and  the  |)rincipl(s  of  law  require  that  it  should  relate, 
whether  exactly  according  to  the  rules  ol' syntax  or  not. 

"The  motion  in  arrest  must  be  overruled." 


FALSE    PRETENCES.  !^Oo 

there  employed  and  sent,  and  did  not  tlien  and  there  employ  and  send 
said  C.  to  collect  and  receive  for  them  said  sum  of  money  so  due  dmd 
owing  as  aforesaid  from  said  C.  A.  P.  to  them,  but  had  forbidden 
said  C.  to  collect  any  money  and  receive  any  for  them,  and  had  long 
before  turned  him  out  of  their  employment;  and  so  the  jurors  afore- 
said, upon  their  oath  aforesaid  do  say,  that  the  said  F.  C.,  by  means 
of  the  false  pretences  aforesaid,  on,  &c.,  at,  &c,,  unlawfully,  know- 
ingly and  designedly  did  receive  and  obtain  from  said  C.  A.  P.,  said 
sum  of  eleven  dollars  and  sixty-three  cents,  being  the  said  money  due 
and  owing  as  atbresaid,  and  etfects  of  the  proper  money  and  effects 
of'the  said  P.,  due,  owing  and  payable  to  said  W.  and  S.,  with  intent 
to  defraud  them  of  the  same,  agamst,  &c.,  and  contrary,  &c.  {Con- 
clude as  in  book  1,  chap.  3).  j 

Pretence  made  to  a  tradesman  that  defendant  was  a  servant  to  a  cus^ 
totner,  and  iras  sent  for  the  particidar  goods  obtai?ied.{u) 

That  A.  B.,  &c.,  on,  &c.,  at^  &:c.,  contriving  and  intending  unlaw- 
fully, fraudulently  and  deceitfully  to  cheat  and  defraud  one  C.  D.  of 
his  goods,  wares  and  merchandises,  on,  &c.,  at,  &:c.,  aforesaid,  unlaw- 
fully, knowingly  and  designedly  did  falsely  pretend  to  the  said  C.  D., 
that  lie  the  said  A.  B.  then  was  the  servant  of  one  C.  Q.,  of,  &c., 
tailor  (the  said  C.  Q.,  then  and  long  before,  being  well  known  to  the 
said  C.  D.,  and  a  customer  of  the  said  C.  D.  in  his  said  business  and 
way  of  trade),  and  that  he  the  said  A.  B.  was  sent  by  the  said  C.  Q. 
to  the  said  C.  D.,  for  ten  yards  of  certain  superfine  woollen  cloth,  by 
which  said  false  pretence  the  said  A.  B.  did  then  and  there,  to  wit, 
on,  &c.,  at,  &.C.,  aforesaid,  unlawfully,  knowingly  and  designedly 
obtain  from  the  said  C.  D.,  ten  yards  of  superfine  woollen  cloth  qf 
the  value  of  fifteen  pounds,  of  the  goods,  wares  and  merchandises  of 
the  said  C,  D.,(y)  with  intent  then  and  there  to  cheat  and  defraud 
him  the  said  C,  D.  of  the  same,  whereas  in  truth  and  in  fact  tlie  said 
A.  B.  was  not  then  the  servant  of  the  said  C.  Q.,  and  whereas  he  the 
said  A.  B.  was  not  then,  or  ever  hath  been,  sent  by  the  said  C.  Q.  to 
the  said  C.  D.  for  the  said  cloth,  or  for  any  cloth  whatsoever,  against, 
&c.,  and  against,  &.c.     {Conclude  as  in  book  1,  chap.  3). 

Another  form  for  same.{ic) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c,.,  intending,  &c.,  unlawfully,  know- 
ingly and  designedly  did  falsely  pretend  to  one  J.  N.,  that  the  said  J.  S. 
then  was  the  servant  of  one  R.  0.  of  St.  Paul's  Churchyard,  in  the  City 
of  London,  tailor  (the  said  R.O.then  and  long  before  being  well  known 
to  the  said  J.  N.,  and  a  customer  of  the  said  J.  N.  in  his  business  and 
way  of  trade  as  a  woollen  draper),  and  that  t4ie  said  J,  S.  was  then 


(ti)  Dickinson's  Q.  S.  335. 

{V)  Essential  to  be  stated ;  Reg.  v.  Parker,  3  Q.  B.  292;  Reg.  r.  Norton,  8  C.  &  P.  196. 
The  want  of  it  will  occasion  indictment  to  be  quaslied  (by  four  judges),  S.  C,  for  it  is  not 
cured  by  verdict  under  7  Geo.  IV.  c.  64,  s.  21 ;  sec  Martin  et  ux.  r.  The  Queen  (in  error  j, 
3  N.  &  P.  472 ;  8  A.  &  E.  481 ;  R.  V.  Douglas,  Dickinson's  Q.  S.  337. 

{w)  Archbold's  C.  P.  5th  Am.  ed.  345. 
22 


254  OFFENCES  AGAINST  PROPERTY. 

f-tnit  by  tfie  said  J.  0.  to  the  said  J.  N.  for  five  yards  of  superfine 
wdollen  cloth,  by  means  of  whicli  said  false  pretences,  the  said  J.  S. 
did,  then  and  there  unlawfully  obtain  from  the  said  J.  N.  five  yards 
of  superfine  woollen  cloth,  of  the  value  of  five  pounds,  of  the  goods, 
("any  chattel,  money  or  valuable  security"), (a?)  of  the  said  J.  N., 
with  intent  then  and  there  to  cheat  and  defraud  him  the  said  J.  N. 
of  the  same;  whereas  in  truth  and  in  fact  the  said  J.  S.  was  not  then 
the  servant fof  the  said  R.  0.;  and  whereas  in  truth  and  in  fact  the 
said  J  S.  was  not  then  or  at  any  other  time  sent  by  the  said  R.  0.  to 
the  said  J.  N.,  for  the  said  clolh  or  for  any  cloth  whatsoever,  to  the 
great  damage  and  deception  of  the  said  J.  N.,  to  the  evil  example  of 
all  others  in  the  like  case  offending,  against,  &.C.,  and  against,  &,c. 
[Conclude  as  in  book  1,  chap.  3). 

Pretence  that  'prisoner  iras  an  unmarried  man,  and  that  having  been 
engaged  to  her,  and  the  engagement  broken  off,  heicas  entitled  to  sup- 
port an  action  of  breach  of  promise  against  her,  by  which  means  he 
obtained  money  from  her.(y) 

That  S.  M.  C,  otherwise  called  S.  M.,  &c.,  on,  &c.,  unlawfully 
did  falsely  pretend  to  the  said  A.  C,  then  and  there  being  a  single- 
woman,  that  he  was  a  single  and  unmarried  man,  and  thereby  then 
and  there  obtained  a  promise  of  marriage  from  the  said  A.  C,  to  wit, 
a  pron)ise  that  in  consideration  that  he  would  marry  her  she  would 
marry  him.  And  the  jurors,  &c.,  do  further  present,  that  the  said  A. 
C,  afterwards,  to  wit,  on  the  day  and  year,  &c.,  wholly  refused  to 
marry  the  said  S.  M.  C,  otherwise  called,  &c.  And  the  jurors,  &c., 
do  further  present,  that  the  said  S.  M.  C,  otherwise  called,  &c.,  after- 
wards, to  wit,  on  the  day  and  year,  &c.,  unlawfully  did  falsely  pre- 
tend to  the  said  A.  C,  that  he  was  at  the  time  of  the  said  promise 
and  refusal  in  this  count  mentioned,  a  single  and  unmarried  man  and 
entitled  to  bring  and  maintain  an  action  for  breach  of  the  said  pro- 
mise of  marriage  against  her  the  said  A.  C,  by  means  of  which  said 
last  mentioned  false  pretence  in  this  count  mentioned,  the  said  S.  M. 
C,  otherwise  called,  &c.,  did  then  and  there  unlawfully  obtain  from 
the  said  A.  C,  one  promissory  note  of  the  Governor  and  Company 
of  the  Bank  of  England,  for  the  payment  of  one  hundred  pounds,  &c., 
{describing  various  kinds  of  money  and  securities),  of  the  pro- 
perty and  moneys  of  the  said  A.  C,  with  intent  then  and  there  to 
cheat  and  defraud  her  the  said  A.  C.  of  the  same;  whereas  in  truth 
and  in  fact,  tlic  said  S.  M.  C,  otherwise  called,  &,c.,  was  not  at  the 
time  of  the  said  promise  of  marriage  in  this  count  mentioned,  or  at 
the  time  of  the  said  refusal  in  this  count  mentioned,  a  singleman  or 
an  unmarried  man,  nor  was  he  at  either  of  those  times  or  at  any 

{X)  See  7  and  8  Geo.  IV.  c.  29,  s.  5. 

(y)  R.  V.  Copcland,  1  C.  &,  M.  516. 

lleld  (Lord  Donman  C  J.,  and  Maulc  J),  tliat  the  fact  of  the  prisoner  paying  his  ad- 
drcsHfiH  was  sufficient  evidence  for  llie  jury  on  wliich  they  might  find  the  first  pretence  that 
the  priHoncr  was  a  singleman  and  in  a  condition  to  marry  ;  and  per  Maule  J.,  tliat  this 
was  Huffieient  evidence  on  which  to  find  the  falseness  of  tiie  other  pretence,  that  he  was 
vntitled  to  maintain  his  action  for  brcacli  of  promise  of  marriage,  and  that  such  latter  false 
pretence  was  a  buflicicnt  false  pretence  within  the  statute. 


FALSE    PRETEVCES.  255 

Other  time  entitled  to  bring  or  maintain  an  action  for  breach  of  the 
said  promise  of  marriage  against  the  said  x\.  C,  Sic,  against,  &c. 
(Conclude  as  in  book  1,  chap.  3). 

Pretence  that  defendants  ivere  the  agents  of  P.  JV.,  who  was  the  owner  of 
certain  stock  and  land,  S^c,  the  latter  of  which  was  in  fact  mortgaged.{z) 

That  R.  H.  and  J.  C,  &c.,  on,  &c.,  at,  &c.,  being  persons  of  an  evil 

(z)  This  form  was  sustained  in  Com.  v.  Harley,  7  Met.  464. 

Dewey  J  :  "As  to  the  first  exception  taken  to  the  instructions  jjiven  to  the  jury,  at  the 
trial,  we  think  tlie  pritici])le  stated  in  Youu<t  and  others  v.  Tlic  King,  3  T.  R.  98,  referred 
to  by  the  counsel  for  tlie  defendant,  sustains  the  ruhng,  ratiier  than  the  objection  to  it. 
Tlie  argument  for  the  plaintiffs  in  error  there  was,  that  the  words  could  not  have  been 
spoken  by  all,  and  that  one  of  them  could  not  be  affected  by  words  spoken  by  another  ; 
each  being  answerable  for  hims6lf  only.  But  it  was  held,  that  'if  they  all  acted  together, 
and  shared  in  the  same  transaction,'  they  committed  the  offence  jointly.  Grose  J.  said, 
'  Ever}'  crime,  which  may  be  in  its  nature  joint,  may  be  so  laid.  Here  it  is  stated  that 
all  the  defendants  committed  this  offence,  by  all  joining  in  the  same  plan  ;  they  were  all 
jointly  concerned  in  defrauding  the  prosecutor  of  his  money.'  Now  it  seems  t(j  us,  that 
if  two  may  be  indicted  for  the  words  spoken  by  one  in  tlie  presence  of  the  other,  it 
appearing  that  they  came  to  act  in  concert,  it  establishes  the  position,  that  all  which  is 
necessary  to  cause  the  liability  to  attach  to  an  individual  of  having  participated  in  making 
false  pretences,  is  his  co-operation  and  acting  in  concert  in  the  general  purpose ;  and  the 
concert  and  co-operation  may  be  shown,  although  one  said  nothing  by  way  of  assenting  to 
or  expressing  his  concurrence  in  the  false  pretences.  If  this  be  so,  it  seems  necessarily  to 
follow  that,  if  A.  procures  B.  to  go  to  C,  and  with  a  false  pretence,  of  which  A.  is  conver- 
sant, to  obtain  tlie  goods  of  C,  A.  is  guilty  in  the  matter  of  obtaining  these  goods  by  false 
pretences;  and  whetiier  A.  be  outside  or  within  the  door  of  the  shop  of  C.  is  immaterial  ; 
all  that  is  necessary  to  be  proved  is,  that  he  is  at  the  time  acting  in  concert  with  B.  and 
aiding  in  putting  forth  the  false  pretences,  and  that  the  precise  false  pretences  and  repre- 
.sentations  charged  in  the  indictment  be  made  with  his  knowledge,  concurrence  and  direc- 
tion.    The  instruction  on  this  point  was  therefore  correct. 

"  The  next  instruction  to  the  jury,  which  is  objected  to,  was  in  these  words,  '  It  is  not 
necessary  for  the  government  to  prove  that  the  defendants,  or  either  of  them,  obtained  the 
goods  on  their  own  account,  or  that  they,  or  either  of  them,  derived,  or  expected  to  derive, 
personally,  any  pecuniary  benefit  therefrom  ;  but  that  if  the  jury  were  satisfied  that  the 
defendants  obtained  said  goods  by  means  of  said  false  pretences,  for  the  sole  use  and  benefit 
of  said  P.  Harley,  this  was  suHicient  to  sustain  the  allegation  in  the  indictment,  that  the 
defendants  obtained  said  goods  by  said  false  pretences.' 

"  It  is  not  contended  by  the  defendant's  counsel  that  it  was  necessary,  in  order  to  support 
the  indictment,  for  the  government  to  prove  that  the  defendant  intended  any  pecuniary 
gain  or  personal  benefit.  That  tlie  contrary  is  the  rule  is  very  clear,  and  was  fully  con- 
ceded in  the  argument.  But  the  ground  assumed  is  that  of  a  variance  between  the  matter 
set  forth  in  the  indictment,  and  the  proof  showing  that  the  goods  were  obtained  for  the 
sole  use  of  P.  Harley.  I  should  doubt,  from  the  report  of  the  case,  whether  the  question 
of  variance  was  distinctly  raised  at  the  trial.  The  point  seems  rather  to  have  been, 
whether  a  party  charged  with  obtaining  goods  by  false  pretences  must  not  be  shown  to 
have  obtained  ihcm  thus  for  his  own  use  or  pecuniary  benefit.  If,  however,  we  look  at 
the  question  as  one  of  variance,  we  think  the  exception  cannot  prevail.  Tiie  only  allega- 
tion, which  is  supposed  to  conflict  with  the  evidence  that  the  goods  were  obtained  for  the 
use  of  P.  Harley  is  this,  that  the  defendants,  'devising  and  intending  by  unlawful  means 
to  get  into  their  hands  and  possession,'  &.c.  But  the  evidence  fully  sustained  the  allega- 
tion. By  means  of  these  false  pretences,  the  defendants  did  actually  obtain  and  get  into 
their  hands  and  possession  these  goods;  and  although  they  might  have  had  a  further  pur- 
pose of  eventually  delivering  them  to  P.  Harley  for  her  sole  use,  that  fact,  if  shown  by  the 
defendants,  would  not  avail  them  to  escape  from  this  indictment. 

"  The  remaining  exception  was,  that  the  false  pretences  were  not,  as  shown  by  the  evi- 
dence, made  personally  to  either  of  the  members  of  the  firm  of  (ieorge  B.  Blake  and  Co., 
hut  to  a  clerk  acting  for  them  in  their  shop,  and  by  him  communicated  to  one  of  the  firm. 
This  objection  was  not  much  relied  on,  and  it  cannot  be  sustained.  It  was  directly  over- 
ruled in  the  case  of  Com.  v.  Call,  21  Pick.  51.5,  where  it  was  held  that  a  false  represen- 
tation to  an  agent  who  communicates  it  to  his  principal,  who  is  influenced  by  it,  is  a  fdUe 
pretence  to  the  principal." 


256  OFFENCES  AGAINST  PROPEnTY. 

disposition,  and  devising  and  intending  by  unlawful  ways  and  means 
to  obtain  and  get  into  their  hands  and  possession  the  goods,  merchan- 
dise, chattels  and  eflects  of  the  honest  and  good  citizens  of  this  com- 
monwealth, and  with  intent  to  cheat  and  defraud  one  G.  B.  B.,  one 
D.  N.  and  one  E.  H.  R.  L.,  all  of  said  Boston,  Massachusetts,  and  co- 
partners in  trade,  transacting  business  luider  the  name,  firm  and  style 
of  G.  B.  B.  and  Company,  did  then  and  there  unlawfully,  knowingly 
and  designedly,  falsely  pretend  and  represent  to  said  G.  B.  B.  and 
Company,  that  they  were  in  the  employment  of  one  P.  H.,  of  said 
Boston,  trader;  that  said  P.  H.  was  possessed  of  and  was  the  rightful 
owner  of  the  stock  of  goods  which  then  were  in  a  certain  shop, 
situated  at  the  corner  of  Hanover  street  and  Union  street  in  said  Bos- 
ton, and  was  solvent  and  in  good  credit,  and  they  were  authorized  to 
buy  goods  in  the  name  of  said  P.  H.  by  said  P.  H.,  and  that  said  R. 
H.  was  authorized  to  give  promissory  notes  for  such  goods,  in  the 
name  of  and  in  behalf  of  said  P.  H.,  that  said  P.  H.  was  a  man  and 
wanted  to  buy  goods  on  credit  of  said  G.  B.  B.  and  Company,  in  the 
fair  and  usual  honest  course  of  trade,  with  in  tent  to  payhonestly  for  them 
at  the  expiration  of  the  term  of  credit  upon  which  they  should  be  sold. 

And  the  said  B.,  N.  and  L.,  then  and  there  believing  the  said  false 
pretences  and  representations  so  made  as  aforesaid,  by  the  said  R.  H. 
and  J.  C,  and  being  deceived  thereby,  were  induced  by  reason  of  the 
false  pretences  and  representations  so  made  as  aforesaid,  to  deliver 
and  did  then  and  there  deliver  to  the  said  R.  H.  and  J.  C.  for  said  P. 
H.,  sundry  goods  and  merchandise  of  great  value,  to  wit,  of  the  value 
of  one  hundred  and  forty-seven  dollars  and  sixty-six  cents,  to  wit,  one 
piece  of  wool  black  cloth,  one  piece  of  ribbed  cassimere  cloth,  one 
piece  of  mixed  doe-skin  cloth,  six  pounds  weight  of  thread  and  one 
pound  of  beaux-sewings,  of  the  proper  goods,  merchandise,  chattels 
and  effects  of  said  B.,  N.  and  L. 

And  the  said  C.  and  R.  H.,  did  then  and  there  receive  and  obtain 
the  said  goods,  merchandise,  chattels  and  effects  of  the  said  B.,  N.  and 
L.,  by  means  of  the  false  pretences  and  representations  aforesaid,  and 
with  the  intent  to  cheat  and  defraud  the  said  B,,  N.  and  L.,  of  the 
same  goods  and  merchandise,  chattels  and  etfects. 

Whereas  in  truth  and  in  fact,  said  P.  H.  was  not  possessed  of  and 
was  not  the  rightful  owner  of  said  stock  of  goods  in  said  store,  at  said 
corner  of  Hanover  street  and  Union  street,  but  before  that  time  had 
made,  executed  and  delivered  divers,  to  wit,  live  mortgages  on  said 
stock  and  her  property,  conditioned  for  the  payment  of  large  sums  of 
money,  to  wit,  sums  of  money  collectively  amounting  to  more  than 
the  value  of  said  stock  of  goods  and  her  mortgaged  property  aforesaid  ; 
all  which  mortgages  are  recorded  in  the  city  clerk's  office  of  said 
City  of  Boston,  according  to  law,  one  of  which  is  dated  on  the  four- 
teentli  day  of  July,  in  the  year  eighteen  hinidrcd  and  forty-one,  to  R. 
H.,  administrator  on  the  estate  of  one  C.  H.;  another  is  dated  on  the 
tenth  day  of  May,  in  the  year  eighteen  hnndred  and  forty-two,  to 
tlie  same  administrator,  and  another  is  dated  on  the  second  day  of  J.une, 
in  the  same  year  to  the  same  administrator,  and  another  of  said  mort- 
gages is  dated  on  the  twenty-ninth  day  of  September,  in  the  same  year 
to  the  same  administrator,  and  another  of  said  morigagcs  is  dated  on 


FALSE  PRKTE.VCES. 


257 


the  thirty-first  day  of  October  in  the  same  year  to  the  same  adminis- 
trator; and  said  P.  H,  was  not  a  solvent  person  in  good  credit,  but 
was  poor,  embarrassed  and  unable  to  pay  the  debts  said  P.  H.  owed, 
and  the  said  P.  H.  was  not  a  man  but  a  woman,  named  P.  H.,  who 
was  insolvent  and  unable  to  pay  her  debts,  and  she  did  not  want  to 
buy  goods  honestly  on  credit  in  a  fair  way  of  business,  and  said  C. 
and  R,  H.  did  not  want  for  her  to  buy  goods  honestly  in  a  fair  course 
of  trade  on  credit  of  said  B.,  N.  and  L.,  with  .intent  to  pay  for  them 
as  aforesaid,  but  to  cheat  them. 

And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  R.  H.  and  J.  C,  by  means  of  the  false  pretences  aforesaid,  on 
the  said  fourth  day  of  November,  in  the  year  of  our  Lord  eighteen 
hundred  and  forty-two,  at  Boston  aforesaid,  unlawfully,  knowingly 
and  designedly  did  receive  and  obtain  from  said  B.,  N.  and  L.,  the  said 
goods,  merchandise,  chattels  and  effects  of  the  proper  goods,  merchan- 
dise, chattels  and  effects  of  the  said  B.,  N.  and  L.,  with  intent  to  defraud 
them  of  the  same,  against,  &c.,  and  contrary,  &.c.  {Conclude  as  in 
book  1,  chap.  3). 

That  defendant  possessed  a  capital  of  eight  thousand  dollars,  which  had 
come  to  him  through  his  wife,  it  being  her  estate,  and  that  a  part  of  it 
had  already  come  into  his  possession,  and  a  part  would  come  into  his 
possession  in  the  month  then  next  ensuing,  SfC.{a)     First  count. 

That  J.  A.  B.,  late  of  the  said  county,  trader,  maliciously  and 
wickedly  devising  and  intending  to  cheat  W.  H.  A.  and  E.  R.  of  their 

(a)  This  was  the  indictment  in  Com.  ».  Burdick,  2  Barr  163,  with  the  single  excep-^ 
tion  of  the  introduction  in  the  text  of  the  "scienter"  after  the  alleifation  of  the  falsity  ot 
the  pretences.  The  statute  in  this  case  received  an  extremely  liberal  construction  from 
Gihson  C.  J.:  "The  rule -of  the  common  law,"  he  said,  "that  ciicating  in  private  transac- 
tions without  affecting  the  public,  must,  to  be  indictable,  have  been  affected  by  artful  de- 
vices or  false  tokens,  was  found  to  be  too  narrow  for  tlie  business  of  the  world,  and  the 
English  statute,  20  Geo.  II.  c.  2!),  which  has  given  place  to  the  7  Geo.  IV.  c.  92,  s.  53,  was 
enacted  to  extend  the  limits  of  the  offence.  From  these,  our  act  of  1842,  sect.  21,  seems 
to  have  been  taken,  and  decisions  on  the  clause  in  the  first,  which  declares  it  an  indictable 
oflence  to  get  money,  chattels  or  securities  from  another,  'by  false  pretence  or  pretences,' 
or  in  the  second,  '  by  any  false  pretence,'  may  be  advantageously  applied  to  cases  here. 
The  distinctions  taken  under  these  statutes,  between  cases  sometimes  differing  in  almost 
imperceptible  degrees,  are  nice  and  well  founded;  and  though  not  authoritative  here,  may 
help  us  in  attaining  a  sound  construction  of  our  own  statute,  which  differs  from  either  of 
its  models  very  little  in  substance  or  in  form.  It  would  be  a  waste  of  time  to  pass  those 
decisions  in  review,  as  they  are  collected  and  arranged  in  all  the  text  books  of  criminal 
law,  but  it  may  be  collected  from  them,  that  a  professed  intent  to  do  an  act  which  the 
party  did  not  mean  to  do,  as  in  Rex  ».  Goodall,  R.  &,  R.  461,  and  Rex  v.  Douglass,  1  Mood. 
C.  C.  462,  is  the  only  species  of  false  pretence  to  gain  property,  which  is  not  indictable. 
These  two  ca.ses  having  been  decided  by  the  twelve  judges,  are  eminently  entitled  to  re- 
spect; but  I  think  it,  at  least,  doubtful  whether  a  naked  lie,  by  which  credit  has  been 
gained,  would  not,  in  every  case,  be  deemed  within  our  statute,  which  declares  it  a  cheat 
to  obtain  money  or  goods  by  any  false  pretence  whatsoever.  Its  terms  are  certainly  more 
emphatic  than  those  of  either  of  the  English  statutes,  but  whether  a  false  pretence  of  mere 
intent  be  within  them  or  not,  it  is  certain  that  a  fraudulent  misrepresentation  of  the 
party's  means  and  resources  is  within  the  English  statutes,  and,  «/or<iori,  within  our  own. 
In  Rex  V.  Jackson,  3  Campb.  370,  it  was  held  to  be  an  offence  to  obtain  goods  by  giving  a 
check  on  a  banker  with  whom  the  drawer  kept  no  cash.  Of  the  same  stamp  is  the  King 
V.  Parker,  2  C.  &  P.  625;  but  Rcgina  r.  Tkndorson  and  another,  1  C.  &  M.  IS,  is  still 
more  to  the  purpose.  The  prisoners  falsely  pretiiidcd  that  one  of  them  was  possessed 
of  twelve  pounds,  which  he  agreed  to  give  for  his  confederate's  hor^^e,  for  which  it  was  pro- 

22* 


2oS  OFFENCES  AGAINST  PROPERTY. 

goods  and  merchandise,  on,  &c.,  at,  &c.,  did  falsely,  unlawfully,  know- 
ingly and  designedly  and  fraudulently  pretend  to  the  said  W.  H,  A. 
and  the  said  E.  R.,  that  he  the  said  J.  A.  B.  possessed  a  capital  of 
eight  thousand  dollars,  that  the  said  eight  thousand  dollars  had  come 
to  him  through  his  wife,  it  being  her  estate,  and  that  a  part  of  it  had 
already  come  into  his  possession,  a  part  would  come  into  his  possession 
in  the  month  then  next  ensuing,  and  that  for  the  remaining  part  there- 
of, he  would  be  obliged  to  wait  for  a  short  lime  ;  whereas,  in  truth 
and  fact,  he  the  said  J.  A.  B.,  did  not  then  possess  a  capital  of  eight 
thousand  dollars,  nor  had  eight  thousand  dollars  come  to  him  through 
his  wife,  it  being  her  estate,  a  part  of  which  had  already  come  into 
his  possession,  a  part  would  come  into  his  possession  in  the  month 
then  next  etisning,  while  for  the  remainiiig  part  thereof,  he  would  be 
obliged  to  wait  for  a  short  time,  as  he,  the  said  J.  A.  B.,  did  then  and 
there  falsely  pretend  to  the  said  W.  H.  A.  and  the  said  E.  R.;  of  the 
falsity  of  which  said  pretences,  he  the  said  J.  A.  B.  then  and  there 
well  knew.  And  the  inquest,  &c.,  do  further  present,  that  the  said  J. 
A.  B.,  afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at  the 
county  and  within  the  jurisdiction  aforesaid,  by  the  said  false  pre- 
tences aforesaid,  did  then  and  there  unlawfully,  fraudulently  and  de- 
signedly obtain  from  the  said  W.  H.  A.  and  E.  R.,  divers  goods  and 
merchandise,  to  wit,  six  pieces  rich  satin  stripe  silk,  being  together 
of  the  value  of  one  hundred  and  four  dollars,  and  one  piece  of  striped 
cloaking  of  the  value  of  fifty  dollars,  being  then  and  there  the  property 
of  the  said  W.  H.  A.  and  E,  R.,  with  intent  to  defraud  the  said  W. 
H.  A.  and  E.  R.  of  the  same,  to  the  great  damage  of  the  said  W.  H. 
A.  and  the  said  E.  R.,  contrary,  &c.,  and  against,  &c.  {Conclude  as 
ill  book  I,  chap.  3). 

Second  count.  That  defendant  had  a  capital  of  f  8000,  which  came 
ihrough  his  wife. 

And  the  inquest,  &c.,  do  further  present,  that  the  said  J.  A.  B. 
wickedly  and  fraudulently  devising  and  intending,  as  aforesaid,  to 
cheat  and  defraud  the  said  W.  H.  A.  and  E.  R.  of  their  goods  and 
merchandise,  on  the  day  and  year  aforesaid,  at  the  county  and  within 
the  jurisdiction  aforesaid,  did  falsely  and  fraudulently  pretend  to  the 
.said  W.  H.  A.  and  E.  R.,  that  he  the  said  J.  A.  B.  possessed  a  capital 
of  eight  thousand  dollars,  which  said  eight  thousand  dollars  had  come 
to  him  through  his  wife,  it  being  her  estate;  whereas,  in  truth  and 
fact  he  the  said  .J.  A.  B.  did  not  then  and  there  possess  a  capital  of 
eight  thousand  dollars,  nor  had  eight  thousand  dollars  come  to  him 
through  his  wife,  nor  had  she,  his  wife,  as  aforesaid,  an  estate  of  eight 
thousand  dollars,  as  he  the  said  J.  A.  B.  did  then  and  there  falsely 
pretend  to  the  said  W.  H.  A.  and  the  said  E.  R.,  of  the  falsity  of  which 
said  pretences,  he  the  said  J.  A.  B.  then  and  there  well  knew.  And 
the  inquest,  &c.,  do  further  present,  that  the  said  J.  A.  B,,  afterwards, 

p'lsi  d  that  llin  j)r()secutor  sfiould  exchange  Iiis  marc  ;  and  tliis  was  Iicld  to  be  clearly  a  false 
jir(;l(;nc<:  williiri  the  statute.  Now  the  (Icfcndunl  is  char^red  in  the  indictment  hclbrc  us, 
with  having;  willully  misrcprcHcntcd  tliat  lie  liad  a  ca|)it!ilof  cijrht  thousand  dollars,  in  right 
of  his  wite;  that  a  part  of  it  was  already  received;  that  another  part  of  it  would  be  re- 
ceived in  the  tours*;  of  a  month  ;  and  that  the  residue  would  be  received  shortly  after  wards; 
arid  if,  as  waH  said  in  MitcheH's  case,  2  Kast  F.  C.  80,  a  false  i)retencc  is  within  tJie  En- 
glish HtJitulc,  wherever  it  has  been  the  cfticiuut  cause  oC  obtaining  credit,  the  false  pretence 
before  is  wiUiin  our  own." 


FALSE  PRETEXCES.  259 

to  wit,  on  the  day  and  year  aforesaid,  at  the  county  and  within  the 
jiu-isdiction  aforesaid,  did,  unlawfully,  knowingly  and  fraudulently 
obtain  from  the  said  W.  H.  A.  atid  the  said  E.  R.,  divers  goods 
and  merchandise,  to  wit,  six  pieces  of  rich  satin  stripe  silk,  together 
of  the  value  of  one  hundred  and  four  dollars,  and  one  piece  of  striped 
cloaking  of  the  value  of  fifty  dollars,  being  then  and  there  the  proper- 
ty of  the  said  W.  II.  A.  and  E.  R.,  with  intent  to  defraud  the  said 
W.  H.  A.  and  E.  R.  of  the  same,  to  the  great  damage  of  the  said  W. 
H.  A.  and  the  said  E.  R.,  contrary,  &c.,  and  against,  &c.  [Conclude 
as  in  book  I,  chap.  3). 

Thi?-d  count.     That  defendant  had  a  capital  o/'i^SOOO. 

That  the  said  J.  A.  B.,  wickedly  and  fraudulently  devising  and  in- 
tending as  aforesaid  to  cheat  and  defraud  the  said  VV.  H.  A.  and  E. 
R,  of  their  goods  and  merchandise,  on  the  day  and  year  aforesaid,  at 
the  county  aforesaid,  and  within  the  jurisdiction  aforesaid,  did  falsely 
and  fraudulently  pretend  to  the  said  W.  H.  A.  and  the  said  E.  R., 
that  he  the  said  J.  A.  B.  then  and  there  possessed  a  capital  of  eight 
thousand  dollars;  whereas  in  truth  and  in  fact  the  said  J.  A.  B.  did 
not  then  and  there  possess  a  capital  of  eight  thousand  dollars,  as  he 
the  said  J.  A.  B.  then  and  there  did  falsely  pretend  to  the  said  W.  H. 
A.  and  the  said  E.  R.  And  the  inquest,  &c.,  do  further  present,  that 
the  said  J.  A.  B.  did  then  and  there  unlawfully,  knowingly  and  fraudu- 
lently obtain  from  the  said  W.  H.  A.  and  the  said  E.  R.,  divers  goods 
and  merchandise,  to  wit,  six  pieces  ofstriped  silk,  being  together  of  tlie 
value  of  one  hundred  and  four  dollars,  and  one  piece  ofstriped  cloak- 
ing of  the  value  of  fifty  dollars,  being  then  and  there  the  property  of 
the  said  W.  H.  A.  and  the  said  E.  R.,  with  intent  to  defraud  the  said 
W.  H.  A.  and  the  said  E.  R.  of  the  same,  to  the  great  damage  of  the 
said  W.  H.  A.  and  the  said  E.  R.,  contrary,  &c.,  and  against,  &c. 
[Conclude  as  in  book  1,  chap.  3). 

Pretence  that  defendant  was  well  off  and  free  from  debt,  ^c.{b) 

That  A.  G.  D.,  &.c.,  on,  &c.,  at,  &c.,  unlawfully  and  wickedly  de- 
vising and  intending  to  cheat  and  defraud  one  W.  F.  of  his  goods, 
moneys,  chattels  and  property,  unlawfully  did  falsely  pretend  to  the 
said  W.  F.  that  he,  the  said  A.  G.  D.,  had  paid  every  dollar  of  the  old 
score  that  he  owed  in  Philadelphia,  that  he  was  well  oft',  and  that  he 
was  very  rich,  and  had  a  great  deal  of  property  in  Kentucky, 
Whereas  in  truth  and  fact,  he  the  said  A.  G.  D.  had  not  paid  every 
dollar  of  the  old  score  that  he  owed  in  Philadelphia,  and  was  not 
well  off",  and  was  not  very  rich,  but  on  the  contrary  was  very  poor, 
and  did  not  own  a  great  deal  of  property  in  Kentucky;  and  he  the 
said  A.  G.  D.  then  and  there  well  knew  the  said  pretence  and  pre- 
tences to  be  false ;  by  colour  and  means  of  which  said  false  pretence 
and  pretences,  he  the  said  A.  G.  D.  did  then  and  there  unlawt'ully 
obtain  from  the  said  VV.  F.  one  black  mantilla  of  the  value  of  twenty- 
live  dollars,  one  garnet  mantilla  of  the  value  of  twenty  dollars,  one 

(/;)  Com.  V.  Daniels,  Phil.  1843.  Under  this  indictment  the  defendant  was  convicted  in' 
Pliiludclphia,  and  sentenced.  A  writ  of  error  was  afterwards  taken  in  tlic  Supreme  Court 
(Ihe  assignment  of  error  buinj  confined  to  the  sentence),  and  tiie  judjjmcnt  of  tiie  court 
below  was  alliimcd. 


2G0  OFFENCF.S  AGAI\ST   PROPERTY. 

black  silk  mantilla  of"  the  value  of  fourteen  dollars,  one  black  em- 
broidered mantilla  of  the  value  of  fourteen  dollars,  two  plain  silk 
mantillas  of  the  value  of  twenty-four  dollars,  two  figured  silk  man- 
tillas of  the  value  of  eighteen  dollars,  twenty-six  yards  and  a-half  of 
striped  silk  of  the  value  of  forty-tluee  dollars  and  six  cents,  two  silk 
shawls  of  the  value  of  twenty-four  dollars,  two  cashmere  shawls  of 
the  value  of  twenty  dollars,  two  net  bags  of  the  value  of  eight  dol- 
lars, two  velvet  bags  of  the  value  of  eight  dollars,  twelve  yards  of 
figured  silk  of  the  value  of  nineteen  dollars  and  fifty  cents,  one  trunk 
of  the  value  of  one  dollar  and  fifty  cents,  being  together  of  the  value 
of  two  hundred  and  thirty-nine  dollars  and  six  cents,  being  then  and 
there  the  property  of  the  said  W.  F.,  with  intent  to  cheat  and  defraud 
the  said  W.  F.,  to  the  great  damage  of  the  said  W.  F.,  contrary,  &c., 
and  against,  &c.     (Cotichide  as  in  book  1,  c/iap.  3). 

Second  coiait.     J\/egatiui7ig  the  pretmcc  more  fully. 

That  the  said  A.  G.  D.,  &c.,on,&c.,  at,  &c.,unlawfully  and  wickedly 
designing  and  intending  to  cheat  and  further  defraud  the  said  W.  F. 
of  his  goods,  moneys,  chattels  and  property,  unlawfully  did  further 
falsely  pretend  to  the  said  W.  F.,  that  he  the  said  A.  G.  D.  had  paid 
every  dollar  of  the  old  score  that  he  owed  in  Philadelphia,  meaning 
thereby  that  he  paid  and  discharged  all  the  old  debts  which  he  owed 
in  Philadelphia,  and  all  debts  which  he  had  previously  contracted  in 
Philadelphia),  that  he  was  well  off  (meaning  thereby  that  he  had 
ample  means),  that  he  was  rich,  and  had  a  great  deal  of  property  in 
the  State  of  Kentucky  (meaning  thereby  that  he  was  a  person  of 
great  wealth).  Whereas  in  truth  and  in  fact,  he  the  said  A.  G.  I). 
had  not  then  and  there  paid  off  every  dollar  of  the  old  debts  which 
he  owed  in  Philadelphia,  and  had  not  paid  off  all  debts  which  he  had 
jneviously  contracted  in  Philadelphia,  but  on  the  contrary,  then  and 
there  owed  and  still  does  owe  large  sums  of  money  to  various  per- 
sons, as  follows:  Seven  hundred  and  fifty-eight  dollars  and  seventy- 
eight  cents  to  J.  M,  0.,  J.  T.  and  S.  B.  D.,  trading  as  0.  and  T,;  ten 
hundred  and  forty  dollars  and  eighteen  cents  to  S.  W.  A.,  G.  W.  J, 
and  W.  F.,  trading  as  A.,  J.  and  Co.;  eight  hundred  and  twenty-two 
dollars  and  twenty-two  cents  to  R.  L.  and  II.  J.,  trading  as  L.  and  J.; 
three  hundred  and  ninety  dollars  and  twenty-four  cents  to  I.  H.  and 
W.  J.  W.,  trading  as  H.  and  W. ;  four  hundred  and  forty-one  dollars 
and  thirty-four  cents  to  R.  D.  W.,  Y.,  J.  A.,  J.  B.  and  II.  W.,  trading 
as  W.  and  A.;  three  hundred  and  ninety-seven  dollars  and  fifty-one 
cents  to  R.  W.  I).  T.,  W.  S.  P.  and  C.  B.  T.,  trading  as  T.,  P.  and  T. ; 
eighty-five  dollars  and  twenty-six  cents  to  R.  J.  T.  and  0.  E.,  trading 
as  T.  and  E.;  and  he  the  said  A.  G.  D.  was  not  well  off,  but  on  the  con- 
trary was  very  poor,  and  he  the  said  A.  G.  D.  was  not  rich,  but  on 
the  contrary  was  then  insolvent  and  unable  to  pay  his  debts,  and  he 
the  said  A.  G.  D.  had  not  then  a  great  deal  of  property  in  Kentucky; 
by  colour  and  means  of  which  said  false  pretence  and  pretences,  he 
the  said  A.  (i.  I),  did  then  and  there  unlawfully  obtain  from  the  said 
W.  F.  the  goods  and  chattels,  property  and  merchandise  in  the  afore- 
said first  count  mentioned,  with  intent  to  cheat  and  defraud  the  said 
W.  F.,  to  tlie  {,'reat  damage  of  the  said  W.  F.,  contrary,  &c.,  and 
against,  k.c.     [Conclude  as  in  book  1,  chap.  3). 


FALSE    PRETEXCES.  201 

Pretence  that  a  certain  draft  far  S7700,  drawn  by  a  house  in  Charles- 
inn  on  a  house  in  Boston,  which  the  defendant  exhibited  to  the  prose- 
cutor, had  been  protested  for  non-payment;  that  the  d(fendartt  had 
hod  his  pocket  cut,  and  his  pochet-booh  covtaining  $  195  stolen  from 
it;  that  a  draft  drawn  by  a  person  in  Philadelphia,  which  the  de- 
fendant showed  the  prosecutor,  had  been  received  by  the  defendant  in 
' exchange  for  the  protested  draft,  and  that  the  defendant  expected  to 
receive  the  money  on  the  last  mentioned  draft.{c) 

That  E.  H.,  late,  &c.,  being  a  person  of  an  evil  disposition,  ill  name 
and  fame,  and  of  dishonest  conversation,  and  devising  and  intending 
by  unlawful  ways  and  means  to  obtain  and  get  into  his  hands  and. 
possession  the  moneys,  goods,  chattels  and  effects  of  the  honest  and 
good  people  of  the  State  of  New  York,  to  maintain  his  idle  and  pro- 
fligate course  of  life,  on,  &c.,  at,  &c.,  with  intent  to  cheat  and  de- 
fraud one  A.  B.,  did  then  and  there  unlawfully,  knowingly  and 
designedly,  falsely  pretend  and  represent  to  the  said  A,  B.,  that  a 
certain  draft  for  six  thousand  seven  hundred  dollars,  purporting  to 
have  been  drawn  by  a  jNIr.  E.  of  Charleston,  on  a  house  in  Boston 
(and  wliich  the  saidE.  H.  then  and  there  exhibited  to  the  said  A.  B.), 
had  been  protested  for  non-payment.  That  he  the  said  E.  H.  had 
his  pocket  cut,  and  his  pocket-book  containing  one  hundred  and 
seventy -five  dollars  stolen  therefrom,  and  that  he  had  got  the  pocket- 
book  subsequently  at  the  police  office  in  the  City  of  New  York,  but 
no  money;  that  a  certain  other  draft  for  six  thousand  five  hundred 
dollars,  drawn  on  a  Mr.  T.  of  Philadelphia  (which  said  E.  H.  then 
and  there  exhibited  to  the  said  A.  B.),  had  been  received  in  exchange 
by  him  the  said  E.  H.  for  the  protested  draft  as  aforesaid ;  and  that 
the  said  E,  H.  expected  to  receive  the  money  on  the  said  last  men- 
tioned draft ;  and  the  said  A.  B.  then  and  there  believing  the  said 
false  pretence  and  representation  so  made  as  aforesaid  by  the  said  E. 
H.,  and  being  deceived  thereby,  was  induced  by  reason  of  the  false 
pretence  and  representation  so  made  as  aforesaid,  to  deliver,  and  did 
then  and  there  deliver  to  the  said  E.  H.  thirty  pieces  of  silver  coin, 
called  dollars,  of  the  value  of  one  dollar  each,  ten  promissory  notes 
for  the  payment  of  five  dollars  each,  and  of  the  value  of  five  dollars 
each,  then  and  there  being  due  and  unsatisfied,  five  other  promissory 
notes  for  the  payment  of  three  dollars  each,  and  of  the  value  of  three 
dollars  each,  then  and  there  being. due  and  unsatisfied,  of  the  proper 
moneys,  goods,  chattels  and  effects  of  the  said  A.  B.,  the  said  E.  H. 
did  then  and  there  receive  and  obtain  the  said  promissory  notes  and 
money  of  the  said  A.  B.,  of  the  proper  moneys,  goods,  chattels  and 
effects  of  the  said  A.  B.,  by  means  of  the  false  pretence  and  repre- 
sentation aforesaid,  and  with  intent  to  cheat  and  defraud  the  said  A. 

.  (c)  People  V.  Hale,  1  Wheel. C.  C.  174.  This  count  purports  to  have  been  "settled"  by 
Mr.  Maxwell,  the  then  district  attorney  of  Now  York.  The  offence  is  set  forth  with  suf- 
ficient  particularity,  with  the  exception  perhaps  of  the  last  assisrnmcnt  of  pretence,  "  that 
defendant  expected  to  receive  the  money,"  &.C.,  which  had  it  stood  alone  would  have  been 
insufficient  to  have  sustained  a  verdict.  It  does  not  appear  from  tiie  report  whetlicr  any 
exception  was  taken  to  the  indictment,  the  chief  point  in  the  case,  so  far  as  the  syllahus  is 
concerned,  beino-  the  declaration  of  Recorder  Rikcr,  that  "the  court  was  always  willing 
to  hear  what  could  be  ullcgt'd  in  favour  of  a  prisoner,  in  aricsl  uf  judgment." 


262  OFFE\CES  AGAINST  PROPERTY. 

B.  of  the  said  promissory  notes  and  money;  whereas  in  truth  and  in 
fact,  the  said  E.  H.  had  not  any  draft  for  six  thousand  seven  hundred 
dollars,  drawn  by  JNIr,  E.  of  Charleston  on  a  house  in  Boston,  and 
no  such  draft  had  been  protested ;  and  whereas  in  fact,  the  said  E. 
H.  had  not  been  robbed  of  any  money,  and  never  did  receive  auv 
pocket-book  from  the  police  otlice  which  had  been  stolen  from  him ; 
and  whereas  in  truth  and  in  fact,  no  other  draft  for  six  thousand  five 
hundred  dollars,  drawn  on  a  Mr.  T.  of  Philadelphia,  had  ever  been 
received  by  him,  the  said  E.  H.,  in  exchange  for  the  said  first  men- 
tioned draft ;  and  whereas  in  truth  and  in  fact,  both  drafts  exhibited 
by  the  said  E.  H.  as  aforesaid  to  the  said  A.  B.  were  forged  and 
false,  and  the  said  E.  H.  never  expected  to  receive  any  money  by 
virtue  thereof  from  the  persons  on  whom  they  purported  to  be  drawn, 
and  which  the  said  E.  H.  then  and  there  well  knew ;  and  whereas  in 
fact  and  in  truth,  the  pretence  and  representation  so  made  as  afore- 
said by  the  said  E.  H.  to  the  said  A.  B.,  was  in  all  respects  utterly 
false  and  untrue,  to  wit,  on,  &c.;  and  whereas  in  fact  and  in  truth, 
the  said  E.  H.  well  knew  the  said  pretence  and  representation,  so 
made  by  him  as  aforesaid  to  the  said  A.  B.,  to  be  utterly  false  and 
untrue  at  the  time  of  making  the  same. 

That  the  said  E.  H.,  by  means  of  the  false  pretence  aforesaid,  on, 
&.C.,  at,  &.C.,  unlawfully,  falsely,  knowingly  and  designedly,  did  re- 
ceive from  the  said  A.  B.,  of  the  proper  moneys,  goods,  chattels  and 
effects  of  the  said  A.  B.,  witti  intention  to  defraud  him  of  the  same, 
against,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Pretence  that  a  ce)'tain  watch  sold  by  defendant  to  prosecutor  was 
gold.{d) 

That  A.  B.,  &c.,  contriving  and  intending  one  C.  D.,  by  false  pre- 
tence to  cheat  and  defraud  of  his  money  and  property  (and  by  means 
of  divers  false  pretences  to  be  hereinafter  more  particularly  described, 

{d)  This  indictment  is  based  generally  on  that  in  Com.  v.  Strain,  10  Met.  521,  the  alle- 
gations in  brackets  being'  introduced.  "The  case  at  bar,"  said  the  court,  "if"  confined  in 
its  proof,  on  the  trial  by  the  jury,  to  the  mere  allegations  in  the  indictment,  would  be  cer- 
tainly quite  bald.  Tlie  indictment  does  not  allccfe  any  bargain,  nor  any  colloquium  as  to 
a  bargain  for  a  watch ;  nor  any  ])ro|)osilion  of  HIake  to  buy,  or  of  the  defendant  to  sell  a 
watch;  nor  any  delivery  of  the  watch,  as  to  which  the  false  pretences  were  made,  into  the 
possession  of  Hhikc,  as  a  cor)sidcration  for  the  money  he  paid  the  defendant. 

"  It  seems  to  us,  that  wiiere  money  or  other  property  is  obtained  by  a  sale  or  exchange 
of  property,  effected  by  means  of  false  pretences,  such  sale  or  e.vcbange  ought  to  be  Set 
forth  in  the  indictment;  and  that  the  false  |)retences  should  be  alleged  to  have  been  made 
with  a  view  to  clFect  such  sale  or  exchange,  and  Uliat  by  reason  thereof  the  party  was  in- 
duced to  buy  or  exchange,  as  the  case  may  be. 

"Although  the  language  of  tlie  Kev.  Stats,  c.  l'2fi,  s.  32,  is  very  broad,  yet  all  will  agree 
that,  in  its.i)raclical  a[)plication,  the  false'  declaration  must  be  made  to  a  party  who  has  an 
interest  in  the  matter,  and  is  affected  injuriously  by  the  falsehood.  We  go  further,  how- 
ever, and  hold  that  in  a  case  like  the  |)rcsetit,  where  the  alleged  false  pretences  were  in- 
jurious only  by  inducing  another  |)erson  to  buy  the  article  as  to  which  such  false  repre- 
Hcntations  were  made,  such  sah;  or  offer  for  sale  must  be  set  out  as  a  part  of  the  facts 
relied  upon,  and  a.s  a  material  allegation  in  the  description  of  the  offence. 

"lJ[>on  the  whole  matter,  the  court  are  of  opinion  that  this  indictment  does  not  plainly 
and  distinctly  set  forth  the  offence  intended  to  be  cliarged ;  that  it  docs  not  contain  an 
nverment  of  those  material  facts  which  the  government  would  be  boiiiui  to  prove,  l>eM>re 
ihey  could  usk  for  a  conviction  ;  and  tiiut,  for  this  cause,  the  judgment  should  be  ai rested." 


FALSE    PRETENCES.  2G3 

to  sell  and  dispose  of  as  a  gemiitie  gold  watch,  to  the  said  C.  D.,  a 
certain  watch  of  base  and  spurious  metal),  unlawfully,  knowingly 
and  designedly  did  falsely  pretend  to  said  C.  D.,  that  the  said  watch 
which  he  the  said  A.  B.  then  and  there  had,  was  a  gold  watch  (and 
that  the  said  A.  B.,  did  thereupon  effect  a  sale  of  the  said  watch  to 
the  said  C.  D.  for  the  sum  of,  &c.,  of  the  money  and  property  of  the 
said  C,  D.,  he  the  said  C.  D.  being  induced  to  purchase  said  watch 
by  the  false  pretence  above  mentioned),  by  means  whereof,  said  A. 
B.  then  and  there  unlawfully,  knowingly  and  designedly  did  obtain 
from  said  C.  D.,  the  said  {setting  forth  the  money  obtained),  of  the 
money  and  property  of  him  the  said  C.  D.  as  aforesaid,  witJi  intent 
iiim  the  said  C.  D.  then  and  there  to  cheat  and  defraud  of  the  same ; 
whereas  in  truth  and  in  fact,  said  watch  was  not  then  and  there  a 
gold  watch,  but  was  a  watch  of  base  and  spurious  metal ;  and  said  A. 
B.  then  and  there  well  knew  that  the  same  was  not  a  gold  watch, 
but  was  a  watch  of  base  and  spurious  metal  as  aforesaid ;  to  the, 
great  damage  and  deception  of  him  the  said  C.  D.,  against,  &.C.,  and 
contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Pretence  that  a  certain  horse  to  be  sold,  ^-c,  was  sound,  and  v:as  the 
horse  called  "  Charley.'''{e) 

That  the  said  M.,  on,  &:c.,  contriving  and  intending  knowingly  and 
designedly,  by  false  pretences  to  cheat  and  defraud  one  J.  L.  of  his 
moneys,  goods,  wares  and  merchandise  and  other  things,  did,  know- 
ingly and  designedly,  falsely  pretend  to  said  L  ,  that  a  certain  horse 
which  he  the  said  ]\I.  then  wished  and  offered  to  exchange  with  said 
L.  for  a  certain  colt  and  five  dollars  in  money,  was  then  and  there  a 
sound  horse,  and  was  the  horse  called  the  C,  the  said  horse  called 
tl)e  C,  being  well  known  to  said  L.  by  true  and  correct  representa- 
"  lions  which  he  had  received,  although  he  had  not  seen  said  horse  called 
the  C,  &c.,  by  which  false  pretences  said  M.,  then  and  there  induced 
the  said  L.  to  exchange  with  and  deliver  to  said  M.,  his  said  colt  and 
five  dollars  in  money  for  said  horse  falsely  represented  as  aforesaid 
to  be  the  C,  &c.,  and  whereas  in  truth  and  in  fact,  the  said  horse  which 
said  M.  offered  to  and  exchanged  with  said  L.,  and  which  he  repre- 
sented as  a  sound  horse,  and  as  the  horse  called  the  C,  was  not  a 
sound  horse,  and  was  not  the  horse  called  the  C,  but  was  a  different 
horse  and  unsound,  and  wholly  worthless,  &,c. 

(c)  This  is  the  substance  of  an  indictment  sustained  in  Maine,  in  State  r.  Mills,  17 
Maine  24.  "The  horse,  called  the  Charley^''  said  the  court,  "might  iiave  had  the  reputa- 
tion of  possessing  qualities,  which  rendered  it  desirable  for  tlie  party  injured  to  become 
the  owner  of  him.  The  defendant  produced  a  horse,  wliich  he  atlirmed,  was  the  Charley. 
It  was  a  false  pretence,  fraudulently  made,  for  the  purpose  of  procuring  a  colt  and  money 
from  another.  The  attempt  succeeded.  These  facts  the  jury  have  found.  It  is  a  case 
literally  within  the  statute;  and  we  do  not  perceive  why  it  is  not  within  the  mischief  it 
was  intended  to  punish.  To  sustain  it  would  not  be  going  further  than  precedents  war- 
rant.  If  the  construction  should  be  narrowed  to  cases,  which  might  be  guarded  against 
by  common  prudence,  the  weak  and  imbecile,  the  usual  victims  of  these  pretences,  would 
be  left  unprotected.  It  may  not  be  easy  to  lay  down  any  general  rule,  witii  proper  quali- 
fications and  limitations ;  but  in  the  case  before  us,  we  are  of  opinion,  that  the  offence 
charged  has  been  committed." 


204  OFFENCES  AGAIXST  PROPERTV. 

Prefcvce,  fJtat  a  horse,  and  phaeton  trerc  Vie  'pruperiij  of  a  lady  (hen 
short/ij  before  deceased,  and  that  the  horse  icas  kind,  <^'C.{f) 

That  T.  K.  the  elder,  &c,,and  S.  K.,  &.C.,  mtending,  &c.,  on,  &.C.,  vJ, 
&c.,  unlawfully,  knowingly  and  designedly  did  falsely  pretend  to  the 
said  G.  W.  F.,  that  a  certain  carriage,  to  wit,  a  carriage  called 
a  phaeton,  and  a  certain  mare  and  a  certain  gelding  which  they 
the -said  defendants  then  and  there  offered  for  sale  to  the  said  G. 
W.  F.,  had'  then  been  the  property  of  a  lady  then  deceased,  and 
were  then  the  property  of  her  sister,  and  were  not  then  the  pro- 
perty of  any  horse-dealer,  and  were  then  the  property  of  a  pri- 
vate person,  and  that  the  said  mare  and  the  said  gelding  were 
then  respectively  quiet  to  ride  and  drive,  and  quiet  and  tractable  in 
every  respect.  By  means  of  which  said  false  pretences  the  said  de- 
fendants did  then  and  there  unlawfully,  knowingly  and  designedly 
obtain  from  the  said  G,  W.  F.,  a  certain  valuable  security,  to  wit,  an 
order  for  the  payment  of  one  hundred  and  sixty-eight  pounds  (being 
then  and  there  the  property  of  the  said  G.  VV.  F.),  with  intent  then 
and  there  to  cheat  and  defraud  him  the  said  G.  W.  F.  of  the  same. 
Whereas  in  truth  and  in  fact,  the  said  carriage,  the  said  mare  and  the 
said  gelding  had  not  then  been  the  property  of  a  lady  then  deceased, 
and  were  not  then  the  property  of  her  sister;  and  whereas  in  truth 
and  in  fact,  the  said  carriage,  the  said  mare  and  the  said  gelding, 
were  the  property  of  a  horse-dealer,  and  whereas  in  truth  and  in  fact 
the  said  carriage,  the  said  mare  and  the  said  gelding,  were  not  then 
the  property  of  a  private  person  ;  and  whereas  in  truth  and  in  fact, 
the  said  mare  and  the  said  gelding  were  not  then  quiet  to  ride  and 
drive,  and  were  not  then  quiet  and  ti-actable  in  every  respect ;  and 
whereas  the  said  defendants  then  and  there  well  knew  that  the  said 
carriage,  the  said  mare  and  the  said  gelding  had  not  then  been  the 
properly  of  a  lady  then  deceased,  and  were  not  then  the  property  of 
lier  sister;  and  also  then  and  there  well  knew  that  the  same  were 
then  the  property  of  a  horse-dealer,  and  that  the  same  were  not  then 
tiie  property  of  a  private  person,  and  that  the  said  mare  and  the  said 
gelding  were  not  then  quiet  to  ride  and  drive,  and  were  not  then 
([uiet  and  tractable  in  every  respect,  to  the  great  damage  and  decep- 
tion of  the  said  G.  W.  F.,  to  the  evil  example,  &,c.,  against,  &c.,  and 
against,  6z:c.     [Conclude  as  in  book  1,  chap.  3). 

Second  count.     Like  the  first,  except  that  the  offering  for  sale  icas 
alleged  to  have  been  by  T.  K.  the  elder,  only. 

Pretence  that  one  J.  P.,  of  the  City  (f  Washington,  vanted.  to  buy  some 
lirandy,  ^c;  that  said  J.  P.  kept  a  large  hotel  at  Washington,  SfC, 
that  defendant  iras  sent  by  said  J.  P.  to  purchase  brandy  as  afore- 
said, and  that  defendant  would  pay  cash  therefor,  if  prosecutor  would 
sell  him  the  same.{g)     First  count. 

That  A.  S.,  late,  &c.,  being  an  evil  disposed  person,  with  intent  to 

(/)  R.  V.  Kenrick,  5  A.  &-  E.  N.  S.  49,  where  tliis  count  appears  to  be  sustained. 
Ig)  Corn.  7).  Sprinjr,  ()y.  &.  Term.  City   and  County   of  Pliiladelpliia.     See  3  Pa.  L. 
J.  89.  The  defendant  was  convicted  and  sentence  passed.  The  averment  that  he  "  intended" 


FALSE    PRETENCES.  2()5 

and  contriving  and  intending  unlawfully,  fraudulently  and  deceitfully 
to  cheat  and  defraud  J.  L.  and  P.  J.,  co-partners  in  trade,  under  the 
firm  of  J.  L.  and  Company,  of  the  said  city  and  county,  of  their  goods, 
wares  and  merchandises,  on,  &c.,  at,  &c.,  unlawfully,  knowingly  and 
designedly,  did  folsely  pretend  to  the  said  J.  L.  and  P.  J.,  as  afore- 
said, that  one  J.  P.,  of  the  City  of  Washington,  wanted  to  buy  some 
brandy,  to  wit,  two  half  pipes  of  brandy,  that  the  said  J.  kept  a 
large  hotel  at  Washington  City  aforesaid,  thai  he  the  said  A.  S.  was 
sent  by  the  said  J.  P.  to  purchase  brandy  as  aforesaid  for  him, 
(said  J.  meaning),  and  he  the  said  A.  S.  would  pay  therefor  in 
cash,  if  they  the  said  J.  L.  and  P.  J.  would  sell  him  the  same ;  by 
which  said  false  pretences  the  said  A.  S.  did  then  and  there,  to  wit. 
on,  &c.,  at,  &c.,  unlawfully,  knowingly  and  designedly  obtain  from 
the  said  J.  L.  and  P.  J.,  as  aforesaid,  two  half  pipes  of  brandy,  of  the 
value  of  three  hundred  dollars,  of  the  goods,  wares  and  merchandises 
of  the  said  J.  L.  and  P.  J.,  with  intent  then  and  there  to  cheat  and 
defraud  them  the  said  J.  L.  and  P.  J.  of  the  same  ;  whereas,  in  truth 
and  in  fact  the  said  A.  S.  was  not  then  sent  by  J.  P.  to  purchase 
such  brandy  as  aforesaid  for  him  or  any  other  person,  and  the  said 
J.  P.  did  not  want  to  buy  any  brandy  as  aforesaid,  and  did  not  keep 
a  hotel  at  Washington  City  as  aforesaid,  and  the  said  A.  S.  did  not  at 
the  time  of  so  as  aforesaid  procuring  the  said  brandy,  intend  to  pay 
for  the  same,  [insert  scienfe?'),  to  the  great  damage  and  deception  of 
the  said  J.  L.  and  P.  J.,  to  the  evil  example  of  all  others  in  like  cases 
offending,  against,  &c.,  and  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 

Second  count.  That  defendant  icus  requested  by  one  J.  P.,  icho 
kept  a  large  hotel  in  Washington  Cily,  to  purchase  some  brandy  for 
said  J.  P.,  and  that  if  prosecutor  would  sell  defendant  two  half  pipes  of 
handy,  defendant  would  pay  prosecutor  cash  for  the  same  shortly  after 
delivery. 

That  the  said  A.  S.,  being  such  person  as  aforesaid,  with  intent  to 
and  contriving  and  intending  unlawfully,  fraudulently  and  deceitfully 
to  cheat  and  defraud  the  said  J.  L.  and  P.  J.,  co-partners  as  afore- 
said, of  their  goods,  wares  and  merchandises,  on,  &c.,  at,  &c.,  unlaw- 
fully, knowingly  and  designedly,-did  falsely  pretend  to  the  said  J.  L, 
and  P.  J.,  as  aforesaid,  that  he,  the  said  A.  S.,  v/as  requested  by  one 
J.  P.,  who  kept  a  large  hotel  in  Washington  City,  to  purchase  some 
brandy  for  him, said  P.;  and  that  if  they,  the  said  J.  L.  and  P.  J.  would 
sell  him,  said  A.  S.,  two  half  pipes  of  brandy,  he  the  said  A.  S.  would 
pay  for  the  same  in  cash  shortly  after  delivery  thereof;  by  which  said 
false  pretences  the  said  A.  S.  did  tlien  and  there,  to  wit,  on  the  day 
and  year  last  aforementioned,  within  the  jurisdiction  o(  the  said  court, 
unlawfully,  knowingly  and  designedly  obtain  from  the  said  J.  L.  and 
P.  J.,  as  aforesaid,  two  half  pipes  of  brandy,  of  the  value  of  three 
hundred  dollars,  of  the  goods,  wares  and  merchandises  of  the  said  J. 

to  pay,  in  the  first  two  counts  would  not  have  been  alone  sufficient,  but  as  it  was  commiUed 
with  other  operative  pretences,  and  as  it  could  be  disengaged  from  the  context  as  surplus- 
age, it  did  not  vitiate  the  counts  in  which  it  is  introduced.  The  omission  of  an  aver- 
ment, however,  that  the  defendant  knew  tiie  pretences  to  be  at  the  time  false,  is  more 
questionable. 

23 


■SlIG  OFFENCES  AGAINST  PROPERTY. 

L  and  P.  J.,  with  intent  then  and  there  to  cheat  and  defraud  them, 
the  said  J.  L.  and  P.  J.,  of  the  same;  whereas  in  truth  and  in  fact, 
the  said  A.  S.  was  not  requested  by  J.  P,  to  purchase  brandy  for  him, 
said  P.,  and  said  P.  did  not  keep  a  hotel  in  Washington  City,  and  the 
said  A.  S.  did  not  at  the  time  of  procuring  the  said  brandy  as  afore- 
said, intend  to  pay  for  the  same  as  aforesaid,  {inso^t  scienter),  to  the 
great  damage  and  deception  of  the  said  J.  L.  and  P.  J.,  to  the  evil  ex- 
ample of  all  others  in  like  cases  offending,  against,  &lc.,  and  against, 
&c.     {Conclude  as  in  book  1,  cTiap.  3). 

Third  count.  Thai  defendant  had  been  requested  by  one  J.  P.,  to 
purchase  for  him  some  brandy,  that  he  {the  said  J.  P.),  kept  a  large 
hotel  in  Baltimore,  ^-"C. 

That  the  said  A.  S.,  being  such  person  as  aforesaid,  with  intent  to 
and  contriving  and.  intending  unlawfully,  fraudulently  and  deceitfully 
to  cheat  and  defraud  the  said  J.  L.  and  P.  J.,  co-partners  as  afore- 
said, of  their  goods,  wares  and  merchandises,  on  the  thirteenth  day  of 
July,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty- 
two,  with  force  and  arms,  at  the  city  and  county  aforesaid,  and  with- 
in the  jurisdiction  of  the  said  court,  unlawfully,  knowingly  and 
designedly,  did  falsely  pretend  to  the  said  J.  L.  and  P.  J.,  as  afore- 
said, that  he  (the  said  A.  S.),  was  requested  by  one  J.  P.  to  purchase 
for  Iiim  some  brandy,  and  that  he  (the  said  P.),  kept  a  large  hotel  at 
Wasliington  ;  by  which  said  false  pretences,  the  said  A.  S.  did  then 
and  there,  to  wit,  on  the  day  and  year  last  aforementioned,  at  the 
city  and  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  unlawfully,  knowingly  and  designedly  obtain  from  the  said  J. 
L.  and  P.  J.,  as  aforesaid,  two  half  pipes  of  brandy,  of  the  value  of 
three  hundred  dollars,  of  the  goods,  wares  and  merchandises  of  the 
said  J.  L.  and  P.  J.,  wiih  intent  then  and  there  to  cheat  and  defraud 
them,  the  said  J.  L.  and  P.  J.,  of  the  same ;  whereas  in  truth  and  in 
fact,  the  said  A.  S.  was  not  requested  by  the  said  J.  P.  to  purchase 
any  brandy  for  him,  and  the  said  P.  did  not  keep  a  hotel  at  Wash- 
ington, {insert  scienter),  to  the  great  damage  and  deception  of  the 
said  J.  L.  and  P.  J.,  to  the  evil  example  of  all  others  in  like  cases 
offending,  against,  &c.,  and  against,  &.c.  {Conclude  as  in  book  I, 
chap.  3). 

For  pretending  to  <in  attesting  justice  and  recruiting  sergeant  that 
defendant  was  not  an  apprentice,  and  therehy  obtaining  money  to 
enlist. {h) 

That  on,  (fcc,  one  D.  K.,  tlien  being  a  sergeant  in  the  invalid  bat- 
talion of  the  royal  regiment  of  artillery  of  our  said  lady  the  queen, 
then  and  long  before  was  a  person  in  due  manner  appointed  and  au- 
thorized to  enlist  persons  to  serve  our  said  lady  the  queen  as  soldiers 
m  the  corps  of  royal  military  artificers  and  labourers,  and  that  one  S. 
I),  had  then  lately  before  enlisted  with  the  said  D.  K.,  to  serve  our 

7t)  Dickinson's  Q.  S.  6tli  cd.  335,  (e).  1  Stark.  ('.  P.  174;  sec  8  Vict.  cc.  8,  !),  and  an- 
•nniil  nniliny  acts;  also  R.  v.  Joscpli  .Joiifs,  1  I/cacli  C.  C.  174.  'Yhe  indentures  ninst  be 
proved  by  n  suljscribinfr  witness,  if  produced,  il).\  for  tlio  guilt  of  tlic  offence  is  eonslituted 
■ijy  the  actual  and  U-gal  binding. 


FALSE   PHF.TENXES. 


2(57 


said  lady  the  queen  as  a  soldier  in  the  said  corps  of,  &c.,and  the  said 
S.  D.,  on,  &c.,  at,  &c.,  in  order  to  be  attested,  pursuant  to  the  statute 
in  that  case  made  and  provided,  did  in  his  proper  person  appear  be- 
fore H.  L.,  esquire,  then  being  one  of  the  justices  of  our  said  lady  the 
queen,  assigned,  dec.  And  the  jurors,  &.c.,  do  further  present,  that 
the  said  S.  D.,  late  of,  &c.,  being  an  evil  disposed  person,  and  con- 
triving and  intending  to  cheat  and  defraud  the  said  D.  K.  of  his  mo- 
neys, and  to  make  it  be  believed  that  he  the  said  S.  D.  was  at  liberty 
and  eligible  to  be  enlisted,  to  serve  our  said  lady  the  queen  as  a  soldier 
in  the  corps  of,  &c.,  on,  &c.,  with  force  and  arms,  at,  &c.,  aforesaid,  un- 
lawfully, knowingly  and  designedly,  did  falsely  pretend  to  the  said 
H.  L.  (he  the  said  H.  L.  then  and  there  being  such  justice  as  afore- 
said, and  then  and  there  having  sufficient  and  competent  power  and 
authority  to  attest  persons  to  serve  our  said  lady  the  queen  as  soldiers 
in  the  said  corps  of,  &c.),  that  he  the  said  S.  D.  was  not  then  an  ap- 
prentice (meaning  that  the  said  S.  D.  then  and  there,  to  wit,  on,  &c., 
at,  &c,,  when  he  so  appeared  before  the  said  H.  L.,  the  justice  afore- 
said, in  order  to  be  attested  as  aforesaid,  was  not  an  apprentice,  and 
that  he  the  said  S.  D.  was  then  and  there  at  liberty  and  eligible  to  be 
enlisted  to  serve  our  said  lady  the  queen  as  a  soldier  in  the  said  corps), 
by  means  of  which  said  false  pretence,  he  the  said  S.  D.  unlaw- 
fully, knowingly  and  designedly,  did  obtain  from  the  said  D.  K. 
the  sum  of  pounds,  of  the  proper  moneys  of  the  said  D.  K., 

with  intent  to  cheat  and  defraud  the  said  D.  K.  of  the  same ;  where- 
as in  truth  and  in  fact,  the  said  S.  D.,  on,  kc,  at,  &c.,  aforesaid,  at 
the  time  when  he  so  appeared  before  the  said  H.  L.,  the  justice  afore- 
said, in  order  to  be  attested  as  aforesaid,  was  an  apprentice,  and  was 
not  at  liberty  and  eligible  to  be  enlisted  to  serve  oar  said  lady  the 
queen  as  a  soldier  in  the  said  corps ;  and  whereas,  in  truth  and  in 
fact,  the  said  S.  D.  was  then,  to  wit,  on,  &c.,  an  apprentice  to  G.  0.; 
and  whereas,  in  truth  and  in  fact,  the  said  S.  D.  was  not  then,  to  wit, 
on,  &c.,  at,  &c.,  at  liberty  and  eligible  to  be  enlisted  to  serve  our  said 
lady  the  queen  as  a  soldier  in  the  said  corps,  against,  &.C.,  and  against, 
SsiC.     (Conclude  as  in  book  1,  chap.  3). 

For  obtaining  more  than  the  sum  due  for  carriage  of  a  parcel  by  produc- 
ing a  false  ticket.{i) 

That  A.  B.,  late  of,  &c.,  on,  &c.,  at,  &c.,  had  in  his  custody  and  pos- 
session a  certain  parcel  to  be  by  him  delivered  to  INIaria  Countess 
Dowager  of  Ilchester,  upon  the  delivery  of  which  he  was  authorized 
and  directed  to  receive  and  take  the  sum  of  six  shillings  and  sixpence, 
and  no  more,  for  the  carriage  and  porterage  of  the  same;  yet,  that 
the  said  A.  B.  produced  and  delivered  to  T.  H.,  then  being  a  servant 
to  the  said  Countess  of  I.,  the  said  parcel,  together  with  a  certain  false 

(t)  This  was  the  indictment  in  R.  v.  Douglass,  1  Campb.  212,  and  it  was  holden,  upon 
tlie  terms  of  30  Geo.  II.  c.  42,  that  a  basket  is  sufficiently  described  as  a  parcel.  It  was 
also  holden,  that  if  money  (as  in  this  case)  be  obtained  from  the  servant,  who  had  money 
of  his  master  in  hand  at  the  time,  it  might  be  well  laid  to  he  the  property  of  the  latter; 
but  if  he  had  not  money  enough  of  his  employer  in  his  hands  at  the  time,  such  master 
cannot  be  slated  to  be  the  person  defrauded. 


2()S 


OFFE^CES  AGAINST  PROPERTV. 


find  cniintprfiMt  ticket,  made  to  denote  tliat  the  sum  of  nine  shillings 
und  tenpeiicc  was  charged  for  the  carriage  and  porterage  of  the  said 
parcel,  and  unlawfully,  knowingly  and  designedly,  did  falsely  pre- 
tend to-  the  said  T.  H.  that  the  said  false  and  counterfeit  ticket  was  a 
just  and  true  ticket,  and  that  the  said  sum  of  nine  shillings  and  ten- 
pence  had  been  charged  and  was  due  and  payable  for  the  carriage 
and  porterage  of  the  said  parcel,  and  that  he  the  said  A.  B.  was  au- 
thorized and  directed  to  receive  and  take  the  said  sum  of  nine  shil- 
lings and  tenpence  for  the  carriage  and  porterage  of  the  said  parcel, 
by  means  of  which  said  false  pretences  defendant  did  unlawfully, 
knowingly  and  designedly,  obtain  of  and  from  the  said  T.  H.,  tlie 
sum  of  three  shillings  and  fourpence,  of  the  moneys  of  the  said  coun- 
tess, with  intent  to  cheat  and  defraud  her  of  the  same,  whereas,  in 
truth  and  in  fact,  &c.  {Negative  the  pretences  and  conclude  as  hefore). 

Pretence  that  defendant  had  no  vote  'protested  for  non-pajpnent,  that  he 
n-as  solvent,  and  worth  from  nine  to  ten  thouttand  dollars. (j) 

Tliat  C.  H.,  late,  &c.,  being  a  person  of  an  evil  disposition,  ill  name 

(j)  People  V.  Hayncs,  14  Wend.  546.  In  this  case  ultimately  there  was  a  new  trial  given 
by  the  Court  of  Errors  on  tiie  g-round  tliat  wlicrc  a  purciiase  of  merchandise  is  made,  the 
goods  selected,  i)ut  in  a  box  and  tlic  name  of  the  purchaser  and  his  phice  of  residence 
marked  thereon,  and  the  box  containing  the  goods  sent  by  the  vendor  and  put  on  board  a 
steamboat  designated  by  the  purchaser,  to  be  forwarded  to  his  residence,  the  sale  is  com- 
plete and  the  gof)ds  become  the  property  of  the  purchaser. 

And  where  after  such  delivery,  the  vendor,  on  receiving  information  inducing  him  to 
suspect  the  solvency  of  the  purchaser,  expressed  an  intention  to  reclaim  the  goods,  and  the 
purchaser  thereupon  made  representations  in  respect  to  his  ability  to  pay,  by  means  of 
which  the  vendor  abandoned  his  intention,  and  the  purchaser  was  then  indicted,  charged 
with  the  offence  of  having  obtained  the  goods  by  false  pretences,  the  representations  niade 
by  hiin  being  alleged  as  false  pretences,  it  was  held,  that  the  sale  being  complete  before 
the  representations  were  made,  the  defendant  could  not  be  considered  guilty  of  the  crimo 
charired  against  him. 

I'lie  above  were  the  only  points  adjudged  in  the  decision  of  the  case;  the  court  declin- 
ing to  pass  upon  the  other  questions  presented  by  the  bill  of  exception.  Those  questions 
are  :  1.  Whether,  admitting  the  rejiresentations  made  by  the  delcndant  to  have  been  made 
previous  to  the  completion  of  the  sale,  and  that  thereby  tlie  vendors  were  induced  to  give 
him  credit,  such  representations  can  |)roperly  be  considered  false  pretences  within  the 
meaning  of  the  statute  ;  and  '2.  Whether  when,  as  in  this  case,  sc»fr«/  pretences  are  alleged 
to  have  been  made,  and  are  averred  to  be  false,  the  public  prosecutor  is  bound  to  prove  «// 
the  jjretences  to  be  false,  or  whether  it  is  sufficient  for  less  than  all  to  be  false,  provided  that 
cnonyh  be  proved  to  authorize  the  jury  to  say  that  those  proved  had  so  material  an  effect 
in  procuring  the  credit,  or  in  inducing  the  delivery  of  the  property,  that  without  the  in- 
fluence of  such  pretences  upon  the  mind  of  the  [)arty  defrauded,  he  would  not  have  given 
tiki  credit  or  parted  with  the  property.  Tlicse  questions  being  of  an  interesting  character, 
and  having  been  fully  discussed  by  the  chancellor  and  senator  Tracy,  the  conclusions  at 
which  thi^y  severally  arrived  are  iK^re  presented. 

('luiclus'.oiis  arrived  at  hi/  the  chancellor  in  the  opinion  delivered  by  him: 

"A  bill  of  exception  cannot  be  presenl(.'d  in  a  criminal  case, to  review  the  charge  of  the 
court,  or  the  finding  of  the  juiy  upon  ?nere  matters  of  fact,  where  there  has  been  no  crio- 
iieoiis  decision  upon  the  matters  of  law. 

"  Whether  it  is  competent  for  a  court  to  grant  a  new  trial  in  a  case  of  felony,  at  the  in- 
Blnncc  of  tlic  delendant,  where  there  has  been  a  [lalpable  misdiscretion  of  the  court  upon 
the  mere  matters  of  fiict,  or  a  verdict  clearly  airainsl  the  weight  of  evidence  without  such 
misdiserc  tit)n,  where  no  erroneous  decision  in  point  of  law  is  made,  (piere. 

"  It  is  not  ricerssary  to  constitute  the  ofl'irice  of  obtaining  goods  by  false  pretences,  that 
the  owner  Hliould  have  been  induced  to  part  with  his  property  solely  ami  entirely  by  pre- 
Ipnrijs  vjliich  vjero  false.  If  tli(^  jury  arc  satisticd  that  the  |)rctenres  proved  to  have  been 
fal.-e  and  tiaudulcnl  were  a  part  of  the  uiorAii^  causes,  inducing  the  owner  to  part  with  his 


FALSE    PRETENCES.  2G9 

and  fame,  and  of  dishonest  conversation,  and  devising  and  intending, 
by  unluwfiil  ways  and  means,  to  obtain  and  get  into  his  hands  and 
possession,  the  moneys,  valuable  tilings,  goods,  chattels,  personal  pro- 
perty and  effects  of  the  honest  and  good  people  of  the  Slate  of  New 
York,  to  maintain  his  idle  and  profligate  course  of  life,  on,  &c.,  ai, 
&c.,  with  intent  feloniously  to  cheat  and  defraud  F.  S.  C,  C.  A,  and 

property,  and  that  the  defendant  would  not  have  obtained  the  goods,  had  not  the  false  pre- 
tences been  superadded  to  statements  which  may  have  been  true,  or  to  other  circumstances 
iiavinir  a  [lartial  in/luence  upon  the  mind  of  the  owner,  tliey  will  be  ju'stihcd  in  tindinf^  the 
defendant  guilty  oi' the  offence  charged  within  the  letter,  as  well  as  within  the  spirit  of 
the  act. 

"  In  the  present  case,  although  all  the  pretences  stated  in  the  indictment,  as  tliose  upon 
the  strength  of  which  the  goods  were  obtained,  are  charged  to  be  false;  still,  \i' either  of 
them  was  in  fact  false,  was  intended  to  deceive  the  owners  of  the  goods,  and  induce  Iheiu 
to  part  with  their  property,  and  produced  that  effjct,  the  indictment  was  sustained;  one 
false  pretence  is  sufficient  to  constitute  the  crime,  although  other  false  pretences  arc 
charged. 

"'i'o  constitute  the  offence  of  obtaining  goods  by  false  pretences,  it  is  not  necessary  that 
any  false  token  should  be  used,  or  that  the  false  pretences  should  be  such  as  that  ordinary 
care  and  common  prudence  were  not  sufficient  to  guard  against  the  deception. 

"The  offence  consists  in  intention  ally  and  fraudulently  inducing  the  ownerto  part  with 
his  goods  or  other  things  of  value,  either  bv  a  wilful  falsehond,  or  by  the  offender  assum- 
ing a  character  he  does  not  sustain,  or  by  representing  himself  to  be  in  a  station  which  he 
knows  he  does  not  occupy. 

"  As  to  the  ownershi[)  of  the  goods  at  the  time  of  the  making  of  the  representations,  the 
chancellor  was  of  opinion,  that  the  delivery  of  the  property  on  board  of  the  steamboat,  for 
the  purposes  for  which  it  was  delivered,  divested  the  vendors  not  only  of  the  possession, 
but  of  the  title  to  the  goods ; — that  they  however  had  the  right  of  stoppage  in  transitu  in 
case  of  the  insolvency  of  the  purchaser;  but  that  to  re-invest  themselves  with  the  right  of 
property  and  possession  of  the  goods,  they  were  bound  to  take  corporal  possession  of  them 
or  to  give  notice  to  the  carrier  not  to  deliver  them  to  the  purchaser,  or  to  do  some  other 
equivalent  act.  Not  having  done  so,  the  property  in  the  gooils  was  in  tlie  defendant,  and 
consequently  he  did  not  obtain  the  possession  or  delivery  of  them  by  mea-its  of  the  false  pre 
tcnces  stated  in  the  indictment;  and  although  he  probably  by  his  false  representations  pie- 
vented  the  vendors  from  exercising  tlie  right  of  stoppage  in  transitu,  still  he  could  not  be 
C'mvicted  o( the  c\\a.r^c  oi' obtaining  the  gn-^ids  by  false  pretences ;  for  which  reason,  and 
that  alone,  he  was  of  opinion  that  the  judgment  of  the  Supreme  Court  ought  to  be  re- 
vised." 

Conclusions  arrived  at  by  Senator  Tracy  in  the  opinion  delivered  by  him  : 

"The  delivery  on  board  the  steamboat  under  the  circumstances  of  the  case,  was  an  ab- 
S'llule  delivery,  and  vested  in  the  purchaser  not  only  the  possession  but  the  title  to  the 
goods;  and  even  if  the  vendors  h;ul  the  right  of  sto[)pagc  in  transitu,  in  case  of  insolvency 
of  the  purchaser,  the  existence  of  that  right  did  not  render  the  delivery  co«(/JUona/,  nor 
could  the  exercise  of  it  divest  the  purchaser  of  the  ownership  of  the  goods.  The  repre- 
sentations relied  on  as  false  pretences  being  'subsequent  to  such  delivery,  if  they  could  be 
considered  as  false  pretences,  would  not  therefore  subject  the  defendant  to  the  charge  of 
obtaining  the  goods  by  false  pretences. 

"  Where  there  are  several  pretences  alleged  in  the  indictment  to  be  false,  all  must  be 
proved  to  be  false.  The  offence  consists  of  two  distinct  elements,  to  wit,  false  pretences 
and  obtaining  goods  of  another.  All  the  pretences  together  constitute  but  one  portion  of 
the  offence;  and  every  pretence,  therefore,  set  forth  and  alleged  to  be  false,  is  a  substantive 
or  constituent  element  of  the  offence,  and  cannot  be  deemed  immaterial ;  the  petit  jury 
can  convict  only  upon  the  pretences  found  by  the  grand  jury,  as  it  cannot  be  known  that 
they  would  have  found  the  bill  true,  unless  it  had  been  proved  before  them  that  all  the 
pretences  found  to  have  been  made,  had  in  fact  been  made  and  falsely  made. 

"The  words  other  false  pretence  in  the  statute,  considered  in  connexion  with  the  other 
terms  used,  and  the  circumstances  under  which  the  statute  30  Geo.  II.  was  passed,  upon 
which  ours  is  founded,  meant  not  a  bare  naked,  lie,  unaccompanied  with  any  artful  contri- 
vance fitted  to  deceive,  although  intentionally  and  fraudulently  told,  with  the  purpose  of 
obtaining  the  property  of  another;  but  they  mean  an  artfully  contrived  story  which  would 
naturally  have  the  effect  upon  the  mind  of  the  person  addressed,  equivalent  to  a  false  to- 
ken or  false  writing,  an  ingenious  conliivanee,  an  uiuisikiI  artifice,  against  which  common 
s.igacily  and  the  exercise  of  ordinary  caution  is  not  a  sutHeient  guard." 

23* 


2T(1*  OFFEXCES  AGAINST   PROPERTY. 

J.  ri.  S.^then  nnd  there  co-partners  in  business  under  the  firm  of  C. 
A.  and  Co.,  did  then  and  there  I'eloiiiously,  unlawfully,  knowingly  and 
designedly,  falsely  pretend  and  repiesent  to  C.  A.,  being  such  co-part- 
ner, that  he,  the  said  C.  H.,  had  tlien  no  note  protested  for  non-pay- 
ment, that  he  was  then  solvent  and  worth  from  nine  to  ten  thousand 
dollars  after  the  payment  of  all  liis  debts,  that  lie  was  perfectly  easy  in 
his  money  concerns,  that  he  had  no  endorser  and  that  he  had  never 
endorsed  more  than  one  note.  And  the  said  C.  A.  then  and  there  be- 
lieving the  said  false  pretences  and  representations  so  made  as  afore- 
said, by  the  said  C.  H.,  and  being  deceived  thereby,  was  induced,  by 
reason  of  the  false  pretences  and  representations  so  made  as  aforesaid, 
to  deliver,  and  did  then  and  there  deliver  to  the  said  C.  H.  five  pieces 
of  gros  de  nap  of  the  value  of  thirty  dollars  for  each  piece,  two  pieces 
of  gros  de  Swiss  of  the  value  of  eighty  dollars  each  piece,  one  piece 
of  bombazine  of  the  value  of  sixty-four  dollars,  nine  dozen  of  belt 
ribbons  of  the  value  of  three  dollars  and  fifty  cents  each  dozen,  two 
pieces  of  black  silk  velvet  of  the  value  of  thirty  dollars  each  piece, 
one  piece  of  silk  of  the  value  of  one  hundred  dollars,  eight  pieces  of 
satin  levantine  of  the  value  of  fifteen  dollars  each  piece,  four  pieces 
of  figured  vestings  of  the  value  of  fifteen  dollars  each  piece,  of  the 
proper  valuable  things,  goods,  chattels  and  effects  of  the  said  F.  S.  C, 
C.  A.  and  J.  H.  S.,  and  the  said  C.  H.  did  then  and  there  designedly 
receive  and  obtain  the  said  goods,  chattels  and  eflects  of  the  said  F. 
S.  C,  C.  A.  and  J.  H.  S.  of  the  proper  valuable  things,  goods,  chattels 
and  eifects  of  the  said  F.  S,  C,  C.  A.  and  J.  H.  S.,  by  means  of  the 
false  pretences  and  representations  aforesaid,  and  with  intent  felo- 
niously to  cheat  and  defraud  the  said  F.  S.  C,  C.  A.  and  J.  H.  S.,  of 
the  said  goods,  chattels  and  effects;  whereas  in  triuh  and  in  fact  the 
said  C.  H.  at  that  time  had  a  note  protested  for  non-payment ;  and 
whereas  in  truth  and  in  fact  the  said  C.  H.  was  then  insolvent  and 
imable  to  pay  his  debts ;  and  whereas  in  truth  and  in  fact  the  said 
C.  H.  was  not  then  easy  in  his  money  concerns,  but  on  the  contrary 
thereof  greatly  embarrassed  in'  his  affairs  ;  and  whereas  in  truth  and  in 
iact  the  said  C.  H.  iiad  endorsers  ;  and  whereasin  truth  and  in  fact  the 
said  C.  H.  was  at  that  time  an  endorser  for  persons  to  the  jurors  un- 
icnown  ;  and  whereas  in  fact  aiid  truth  the  pretences  and  representa- 
tions so  made  as  aforesaid,  by  the  said  C.  li.  to  the  said  C.  A.,  was 
and  were  in  all  respects  utterly  false  and  untrue,  to  wit,  on  the  day 
and  year  last  aforesaid,  at  the  ward,  city  and  county  aforesaid;  and 
whereas  in  fact  and  in  truth  the  said  C.  II.  well  knfew  the  said  pre- 
ti.-nces  and  representations  so  by  him  made  as  aforesaid  to  the  said 
C.  A.  to  be  utterly  false  and  untrue  at  the  time  of  making  the  same. 
And  so  the  jurors  aforesaid  on  their  oath  aforesaid,  do  say  that  the 
said  C.  H..  by  means  of  the  false  pretences  aforesaid,  on,  &c.,  at,  &c., 
feloniously,  unlawfully,  falsely,  knowingly  and  designedly  did  receive 
and  obtain  from  the  said  F.  S.  C,  C.  A.  and  J.  11.  S.  the  said  goods, 
chattels  and  effects  of  the  proper  valuable  things,  goods,  chattels  and 
effects  of  the  said  F.  S.  C,  C.  A.  and  J.  II.  S.,  with  intent  feloniously 
to  cheat  and  defraud  them  of  the  same,  against,  &c.,  and  against,  &c. 
{Conclude  us  in  book  1,  chap.  3). 


FALSE  PRETENCES.  271 

Oiiainin^  accrpUmces  on  drafts,  hij  pretevce  thai  certain  goods  had 
been  purchased  by  defendant  and  were  about  to  be  shipped  to  prose- 
cutor. 

That  S,  M.,  late,  &c.,  wickedly  devising  and  intending  to  cheat  and 
detraud  W.  C.  Jr.,  and  P.  P.  G.,  co-partners,  trading  under  the  firm  of 
C.  and  G.,  of  their  goods,  chattels,  moneys  and  properties,  on,  &.c.,  at, 
&c.,  did  request  and  solicit  them  the  said  W.  and  P.,  trading  as  afore- 
said, to  accept  certain  drafts  or  bills  of  exchange  drawn  by  him  the 
said  S.  M.  on  them  the  said  C.  and  G.  for  the  sum  of  three  thousand 
dollars  each,  both  dated  Philadelphia,  May  twenty-sixth,  one  thousand 
eight  hundred  and  forty-seven,  one  payable  forty  days  after  date,  the 
other  payable  sixty  days  after  date,  and  both  being  drawn  to  the  or- 
der of  him  the  said  S.;  and  as  tlie  inducement  for  them  the  said  W. 
and  P.,  trading  as  aforesaid,  to  accept  the  said  drafts  or  bills  of  ex- 
change, he  the  said  S.  did  then  and  there  unlawfully  and  fraudulently 
and  designedly  pretend  to  the  said  W.  C.  Jr.,  then  and  there'  being 
co-partner  as  aforesaid,  that  he  the  said  S.  M.  had  purchased  and  had 
in  Pittsburg,  ready  for  shipment,  nineteen  thousand  barrels  of  flour, 
and  about  fifty  thousand  bushels  of  wheat,  rye,  corn  and  oats  ;  and 
that  if  he,  the  said  W.  C.  Jr.,  partner  as  aforesaid,  would  accept  the 
said  two  drafts  above  described,  he  the  said  S.  would  go  out  to  Pitts- 
burg and  ship  them,  the  said  0.  and  G.,two  thousand  barrels  of  flour 
to  cover  the  said  two  drafts,  and  that  he  the  said  S.  had  already  or- 
dered to  be  shipped  to  them  the  said  C.  and  G.  one  thousand  barrels 
of  flour,  to  cover  a  certain  other  draft  or  bill  of  exchange  then  before 
drawn  by  the  said  S.  on  the  said  C.  and  G.  for  the  sum  of  six  thous- 
and three  hundred  and  seventy-nine  dollars  and  seventy-six  cents, 
and  duly  accepted  by  the  said  C.  and  G.,  and  then  remaining  unpaid, 
whereas  in  truth  and  fact  he  the  said  S.  had  not  purchased,  and  had 
not  in  Pittsburg  ready  for  shipment  nineteen  thousand  barrels"  of 
flour,  and  about  fifty  thousand  bushels  of  wheat,  rye,  corn  and  oats, 
and  lie  the  said  S.  did  not  intend  to  go  out  to  Pittsburg  and  ship  to 
them  the  said  C,  and  G.  two  thousand  barrels  of  flour  to  cover  the 
said  two  drafts  of  three  thousand  dollars  each, then  asked  to  be  accepted, 
and  he  the  said  S.  had  not  ordered  to  be  shipped  to  said  C.  and  G.  one 
thousand  barrels  of  flour  to  cover  and  secure  the  payment  of  the  said 
other  draft  of  six  thousand  three  hundred  and  seventy-nine  dollars 
and  seventy-six  cents,  drawn  by  the  said  S.  as  aforesaid,  and  he  the 
said  S.  then  and  there  well  knew  the  said  pretence  and  pretences  to 
be  false  and  fraudulent ;  by  colour  and  means  of  which  said  false  pre- 
tence and  pretences,  he  the  said  S.  did  then  and  there  unlawfully  and 
with  intent  to  cheat  and  defraud  them  the  said  C.and  G.,  procure  and 
obtain  the  acceptance  of  the  said  firm  of  C.  and  G.  from  the  said  W.  C. 
Jr.,  then  and  there  being  partner  as  aforesaid,  to  and  upon  the  said 
two  drafts  of  three  thousand  dollars  each,  by  the  writing  of  the  name 
of  the  said  C.  and  G.  on  the  face  of  the  said  drafts,  which  said  drafts 
respectively  are  of  the  tenor  and  eff'ect  following,  to  wit  : 


272  OFFE.VCES  AGAINST  PROPERTY. 

"  Dollars,  3000.  Pliiladelpliia,  May  26th,  1847. 

"  Forty  days  atter  date  please  pay  to  my  own  order  three  thousand 
dollars,  and  charge  the  same  to  accoinit  ot.  Yours,  &.C., 

S.  M." 
"To  Messrs.  C.  and  G.,  Philadelphia." 

[Accepted — C.  and  G]. 

«  Dollars,  3000.  Philadelphia,  May  26th,  1847. 

"  Sixty  days  after  date  please  pay  to  my  own  order,  three  thousand 
dollars,  and  charge  same  to  account  of,  Yours,  &c., 

S.  M." 

«  To  Messrs.  C.  and  G.,  Philadelphia." 

[Accepted — C,  and  G]. 
being  then  and  there  the  said  two  drafts  of  the  value  of  six  thousand 
dollars.  And  the  inquest  aforesaid  do  further  present,  that  afterwards, 
to  wit,  on,  &c.,  the  said  S.  M.,  the  said  drafts  being  so  accepted  by  the 
said  C.  and  G.,  endorsed  the  same  in  blank,  and  that  afterwards,  to 
wit,  at  the  respective  dates  and  times  when  the  said  drafts  so  accepted 
became  due  and  payable  according  to  the  tenor  thereof  respectively, 
they  the  said  C.  and  G.  by  reason  of  the  said  acceptances,  were  obliged 
to  pay  the  amounts  thereof  and  did  pay  the  sum  of  six  thousand  dol- 
lars in  cash,  being  then  and  there  the  moneys  of  the  said  W.  C,  Jr. 
and  P.  P.  G.,  trading  as  C.  and  G.,  to  the  great  damage  of  them  the 
said  C.  and  G.,  contrary,  &.C.,  and  against,  &.C.,  {Conclude  as  in  book 
1,  chap.  3). 

Obtaining  acceptances  by  the  pretence  that   defendants  had  certain 
goods  in  storage  subject  to  prosecittor^s  order.{Ji) 

That  J.  J.  M.,  late,  &c.,  with  intent  to  and  contriving  and  intending 
unlawfully,  fraudulently,  designedly  and  deceitfully  to  cheat  and  de- 
fraud 0.  P.  P.  and  VV.  T.  E.,  who  at  the  time  hereinafter  mentioned, 
to  wit,  on  the  ninth  day  of  June,  in  the  year  of  our  Lord  one  thous- 
and eight  hundred  and  forty-five,  were  co-partners  in  trade,  under  the 
firm  of  P.  and  E.,  of  the  said  city  and  county,  on,  (tc,  at,  <tc.,  did 
falsely,  unlawfully,  knowingly  and  designedly  pretend  and  state  to 
the  said  0.  P.  P.  and  \V.  T.  E.,  then  co-partners  as  aforesaid,  that  he 
the  said  J.  J.  M.  and  a  certain  D.  E.  T.,  then  co-partners  in  trade, 
under  the  firm  of  T.  and  M.,  of  the  City  of  New  York,  then  had  re- 
ceived from  certain  persons  trading  together  under  the  firm  of  8,  and  S., 
on  storage,  in  certain  warehouses  of  the  said  firm  of  said  T.  and  M., 
in  the  said  City  of  New  York,  nimibered  24,  26,  28  and  30  Leonard 
street,  twenty-two  hundred  barrels  of  cistern  sugars,  and  they  the  said 
J.  J.  M.  and  D.  E.  T.,  co-partners  as  aforesaid,  had  agreed  to  hold  the 
same  subject  to  the  order  of  the  said  firm  of  S.  and  S.,  and  that  the 
said  T.  and  M.,  then  had  and  held  the  same  twenty-two  hundred 
barrels  of  cistern  sugars  in  the  warehouses  aforesaid,  and  the  said  J. 
J.  M.  (hd  then  and  there  execute  a  certain  pa)ier  writing,  in  the 
words  and  figures  following,  to  wit,  "  Philadelphia,  Jimc  yih,  1845, 

(fc)  'J'liis  count  was  drawn  by  eminent  counsel  in  Philadelplii;!,  in  1817.  Tlic  defcncian^t 
was  acquilled. 


FALSE  PRETENCES. 


273 


received  from  Messrs.  S.  and  S.,  on  storage  in  our  warehouses,  at 
Nos.  24,  26,  28  and  30  Leonard  street,  New  York,  twenty-two  hun- 
dred barrels  of  cistern  sugars,  which  we  agree  to  hold  subject  to  tlieir 
order.  T.  and  M."  And  the  said  firm  of  S.  and  S.,  did  then  and 
there  endorse  the  said  paper  writing  with  the  following  endorseraeni  : 
"Deliver  the  within  to  the  order  of  Messrs.  P.  and  E.  S.  and  S." 
And  the  said  J.  J.  M.  did  tiien  and  there  deliver  to  the  said  0.  P.  P. 
and  W.  T.  E.,  co-partners  as  aforesaid,  the  said  paper  writing; 
whereas,  in  truth  and  in  fact,  the  said  J.  J.  M.  and  D.  E.  T.,  co-part- 
ners as  aforesaid,  had  not  received  the  said  twenty-two  hundred  bar- 
rels of  cistern  sugars  in  the  said  warehouses,  nor  had  they  the  said 
twenty-two  hundred  barrels  of  cistern  sugars  in  said  warehouses,  rtor 
liad  tliey  any  such  warehouses  as  the  said  J.  J.  M.did  then  and  there, 
to  wit,  on  the  day  and  year  aforesaid,  at  the  city  and  county  afore- 
said, falsely  pretend  and  state  to  the  said  0.  P.  P.  and  W.  T.  E.,  then 
co-partners  as  aforesaid.  And  the  inquest  aforesaid,  on  their  oaths 
and  affirmations  aforesaid,  do  further  present  and  say,  that  the  said  J. 
J.  M.,  did  designedly  by  the  false  pretences  aforesaid,  with  intent  to 
cheat  and  defraud  the  said  0.  P.  P.  and  W.  T.  E.,  under  the  name 
and  firm  of  P.  and  E.,  then  and  there,  to  wit,  on,  &c.,  at,  &c.,  obtain 
from  the  said  0.  P.  P.  and  W.  T.  E.,  then  co-partners  as  aforesaid, 
their  acceptance  of  the  following  drafts  or  bills  of  exchange,  drawn 
by  the  said  J.  J.  M.  and  D.  E.  T.,  co-partners  as  aforesaid,  upon  the 
said  P.  and  E.,  in  favour  of  themselves,  the  said  T.  and  M.,  &c.,  {sei- 
ting  forth  drafts  as  in  last  farm),  to  the  great  damage  of  them  the 
said  0.  P.  P.  and  W.  T.  E.,  co-partners  as  aforesaid,  to  the  evil  ex- 
ample of  all  others  in  like  cases  offending,  against,  &c.,  and  con- 
trary, &c.     [Conclude  as  in  book  1,  chap.  3). 

{Add  other  counts,  setting  forth  specially  the  bills  obtained,  ^-c.) 

For  receiving  goods  obtained  by  false  pretences,  under  the  English  sta- 
tute.ij) 

That  A.  B.,  late,  of,  &c.,  on.,  &c.,  at,  &c.,  unlawfully,  knowingly 
and  fraudulently  did  receive  ten  gold  watches,  of  the  value  of  one 
hundred  pounds,  of  the  goods  and  chattels  of  E.  F.,  by  one  C.  D.,  then 
lately  before  unlawfully  obtained  from  the  said  E.  F.  by  false  pre- 
tences,[m)  that  is  to  sav,  by  falsely  pretending  that  he  the  said  C.  D.  was 
the  servant  of  one  G.  H.,  and  had  been  sent  by  the  said  G.  H.  for  the 
said  watches,  to  be  inspected  by  him,  whereas,  in  truth  and  in  fact,  he 
the  said  C.  D.  was  not  the  servant  of  the  said  G.  H.  nor  sent  by  him 
for  the  said  watches  to  be  inspected  by  him,  or  for  any  other  purpose 
whatever  ;  he  the  said  A.  B.  at  the  time  he  so  received  the  said  gold 
watches,  on,  &c.,  at,  &.C.,  then  and  there  ivell  knowing  the  same  to 
have  been  so  unlawfully  obtained  by  the  said  C.  D.  from  the  said  E. 
F.  by  false  jiretences  aforesaid  ;  against,  &c.,  and  against,  Sec  {Con- 
clude as  in  book  1,  chap.  3). 

(Z)  Dickinson's  Q  S.  6tli  ed.  444. 

(m)  Essential  to  be  stated:  as  also  that  the  receiver  knew  them  to  be  so  unlawfully  oh- 
taincd  ;  Rejtr.  ».  Frances  Wilson,  2  Mood.C'.  C.  .5-2.  "Unlawfully  taken  and  carried  away," 
will  not  sufn.cc,  S.  C. ;  Dlckinson''s  Q  S.  6th  ed.  444. 


274  OFFENCES  AGAINST  PROPERTY. 

CHAPTER  XL 

DESTROYING  A  VESSEL  AT  SEA,  &C.(«) 

Sinking  and  destroying  a  vessel,  the  parties  not  being  owner  in  whole 
or  in  fart,  under  the  U.  S.  statute.{b) 

That  A.  B.,  &c.,  late,  &c.,  and  C.  D.,  late,  &c.,  at,  &c.,  on,  &c.,  on 
the  high  seas,  out  of  the  jurisdiction  of  any  particular  state  of  the 
United  States  of  America,  within  the  admiralty  and  maritine  juris- 
diction of  the  United  States  and  within  the  jurisdiction  of  this  court, 
they  the  said  then  and  there  belonging  to  a  certain  vessel, 

being  a  called  the  which  said  was  not  owned  in 

whole  dr  in  part,  either  jointly  or  severally  by  them,  the  said 
or  either  of  them,  and  which  said  was  then  and  there  the  ]>ro- 

perty  of  some  person  or  persons  to  the  jurors  aforesaid  as  yet  un- 
known, they  the  said  then  and  there  on  the  day  of 
aforesaid,  being  in  and  on  board  the  said  on  the  high  seas  as 
aforesaid,  did  then  and  there  feloniously,  wilfully  and  corruptly  cast 
away  and  destroy  tlie  said  called  the  against,  &c.,  and 
against,  &c.     (Conclude  as  in  book  1,  chap.  3). 

Second  count. 

(Same  as  first  count,  substituting):  "  was  then  and  there  the  pro- 
perty of  then  and  still  being  citizens  of  the  United  States  of 
America,"  for  "  was  then  and  there  the  property  of  some  person  or 
persons  to  the  jurors  aforesaid  as  yet  unknown." 

Third  count. 

That  A.  13.  and  C.  D.,  late,  &c.,  heretofore,  on,  &c.,  the  said 
then  and  there  belonging,  in  the  capacity  of  master  (or  othertvise), 
40  a  certain  vessel,  being  a  called  the  the  property  of  a 

certain  citizen  or  citizens  of  the  United  States  of  America,  to  wit,  of 

and  the  said  then  and  there  belonging  to  the  said 

called  the  in  the  capacity  of  mate  (or  ot/ierwise),  of  which  said 

they  the  said  were  not  owners,  nor  was  either  of  them 

an  owner,  did  then  and  there  feloniously,  wilfully  and  corruptly  cast 
away  and  destroy  the  said  called  the  ,  against,  &c.,  and 

against,  &,c.     {^Conclude  as  in  book  1,  chap.  3). 

Fourth  count. 

That  A.  13.,  late,  &c.,  and  C.  D.,  late,  &c.,  heretofore,  &c.,  did  then 
and  there,  in  and  on  board  of  a  certain  vessel,  being  a  called 

the  the  property  of  then  and  still  being  citizens  of  the 

United  States  of  America,  to  which  said  they  the  said 

then  and  there  belonged,  the  said  as  and  the  said 

(d)  Soc  for  [)roHccution  for  buniingf  a  vessel,  »fcc.,  U.  S.  v.  Lockman,  1  Bost.  L.  Rep.  N.  S. 
irjI.Auir.  1848. 

ill)  'I'liis  form  was  used  in  U.  S.  v.  Snow,  in  New  York,  ia  1847,  without  exception 
beiiii'  taken  to  it. 


DESTROY  I  iVG  A  VESSEL  AT  SEA,  &C.  275 

as  and  of  which  said  the  said  were  not  owners, 

nor  was  either  of  them  an  owner,  feloniously,  wilfully  and  corruptly 
procure  the  said  called  the  to  be  cast  away  and  destroyed, 

against,  &c.,  and  against,  &c.     (Conclude  as  in  book  \,chap.  3). 

Fifth  count. 

That  the  said  A.  B.  and  the  said  C.  D.,  heretofore,  to  wit,  on,  &c., 
did  then  and  there,  in  and  on  board  of  a  certain  vessel,  being  a 
called  the  the  property  of  a  certain  person  or  persons,  being  a 

citizen  or  citizens  of  the  United  States  of  America,  to  the  said  jurors 
unknown,  to  which  said  they  the  said  then  and  there  be- 

longed, and  of  which  said  the  said  were  not  owners,  nor 

was  either  of  them  an  owner,  feloniously,  wilfully  and  corruptly  cast 
away  and  destroy  the  said  called  the  ,  against,  &c»,  and 

against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Sixtk  count 

That  the  said  A.  B,  and  the  said  C.  D.,  on,  &c.,  at,  ifcc,  belonged 
to  a  certain  vessel,  being  a  called  the  and  were  then  and 

there,  in  and  on  board  the  said  the  said  in  the  capacity 

of  and  the  said  in  the  capacity  of  the  said 

not  being  owners,  either  in  whole  or  in  part,  nor  either  of  them  being 
an  owner,  either  in  whole  or  in  part  of  the  said  but  the  said 

being  then  and  there  the  property  of  then  and  still  being 

citizens  of  the  United  States  of  America,  and  that  the  said  so 

being  then  and  there  on  the  high  seas  as  aforesaid,  in  and  on  board 
of  the  said  as  aforesaid,  did  then  and  there,  with  force  and 

arms,  feloniously,  wilfully  and  corruptly,  make  a  certain  hole  of  the 
width  of  inches,  and  of  the  depth  of  in  and  through  the 

said  by  means  of  and  through  which  said  hole,  so  made  as 

aforesaid,  the  sea  entered,  filled  and  sunk  the  said  and  the  said 

did  then  and  there  by  the  means  aforesaid,  feloniously,  wil- 
fully and  corruptly  destroy  said  against,  &.c.,  and  against,  &:c. 
{^Conclude  as  in  book  1,  chap.  3). 

Seventh  count. 

{Same  as  sixth  count,  substituting):  "the  said  being  then 

and  there  the  property  of  a  certain  person  or  persons,  being  a  citizen 
or  citizens  of  the  said  United  States,  to  the  said  jurors  unknown,"ybr 
"  the  said  being  then  and  there  the  property  of  then  and 

still  being  citizens  of  the  United  States  of  America." 

Eighth  count. 

{Same  as  sixth  count,  substituting)  :^^^e\on\ous\Y,  wilfully  and 
corruptly  procure  a  certain  hole  of  the  width  of  inches,  and  of 

the  depth  of  to  be  made  in  and  through  the  starboard  side  {or 

otherwise),  of  the  said  by  means  of  and  through  which  said 

hole  so  made  as  aforesaid,  the  sea  entered,  filled  and  sunk  the  said 
and  so  the  said  did  then  and  there  by  the  means  last 

aforesaid,  feloniously,  wilfully  and  corruptly  procure  the  said 
10  be  cast  away  and  destroyed,"  for  "feloniously,  wiltuUy  and  cor- 
ruptly ir.ako  a  certain  hole  of  the  width  of  inches  and  of  the 
depth  of            in  and  through  the  said            by  means  of  and  through 
which  said  hole,  so  made  as  aforesaid,  the  sea  entered,  filled  and  sunk 


276 


OrFEXCES  AGAIN'ST  PROPERTY. 


the  said  and  the  said  did  then  and  there  by  the  means 

albresaid,  feloniously,  wilfully  and  corruptly  destroy  said  ." 

{For  final  count,  see  p.  17,  97  n,  123  n). 

Casting  au-ay  a  vessel  with  intent  to  pj-ejudice  the  owners,  under  the 
English  statute. [c) 

That  E.  L.,  late,  &c.,  a  certain  vessel  called  the  D.,  the  property  of 
A.  H.  and  others,  on  a  certain  voyage  upon  the  high  seas  then  being, 
then  and  there  upon  the  high  seas  within  the  jurisdiction  of  the  admi- 
ralty of  England  and  within  the  jurisdiction  of  the  Central  Criminal 
Court,  feloniously,  unlawfully  and  maliciously  did  cast  away  and 
destroy,  with  intent  to  prejudice  the  said  A.  H.  and  another,  being 
part  owners  of  the  said  vessel,  against  the  form  of  the  statute,  &c. 
And  further,  that  P.  M.,  &c.,  before  the  said  felony  was  committed 
in  form  aforesaid,  at  London  aforesaid,  and  within  the  jurisdiction  of 
the  said  Central  Criminal  Court,  did  feloniously  and  maliciously  in- 
cite, move,  aid,  counsel,  hire  and  command  the  said  E.  L.,  the  said 
felony,  in  manner  and  form  aforesaid,  to  do  and  commit,  against,  &c. 
[Conclude  as  in  book  1,  chap.  3). 

(c)  R.  ».  Wallace,  1  C.  &  M.  113. 

The  statute  1  Vict.  c.  89,  s,  6,  enacts,  that  "  whosoever  sliall  unlawfully  and  maliciously 
set  fire  to,  or  in  any  wise  destroy  any  ship  or  vessel,  wlictiicr  the  same  be  complete  or  in 
an  unfinished  state,  or  shall  unlawfully  and  maliciously  set  fire  to,  cast  away,  or  in  any 
wise  destroy  any  ship  or  vessel,  witli  intent  thereby  to  prejudice  any  owner  or  part  owner 
of  such  ship  or  vessel,  or  of  any  goods  on  board  the  same,  or  any  |)crson  that  hath  under- 
written or  shall  underwrite  any  policy  of  insurance  upon  such  ship  or  vessel,  or  on  the 
freight  thereof,  or  upon  any  goods  on  board  the  same,  shall  be  guilty  of  felony,"  &c.  The 
]  1th  section  of  the  same  statute  enacts,  that  "in  the  case  of  every  felony  punishable  under 
tills  act,  every  principal  in  the  second  degree  and  every  accessory  before  the  fact,  shall  be 
fiunishable  with  death  or  otherwise,  in  tiie  same  manner  as  the  principal  in  the  first 
degree  is  by  this  act  punishable,"  &,c. 


BOOK  THE   FIFTH. 

OFFENCES  AQAINST  SOCIETY, 


CHAPTER   I. 
PERJURY. 


General  frame  of  indictment.  Perjury  in  swearing  an  alibi  for  afehn.{a) 

That  at  the  court,  Lc,  (setting  forth  the  style  of  the  court),{b) 
before,  &c.,  {stating  the  members  of  the  court),  one  G.  B.  was  indue 
form  of  law  tried  upon  a  certain  indictment  then  and  there  depending 
against  him,  for  having  on  the  twentieth  day  of  July,  in,  &c.,  felo- 

(a)  Stark.  C.  P.  459. 

(b)  The  object  of  this  part  of  the  indictment,  as  is  stated  by  Mr.  Chitty,  on  whose  au- 
thority (2  Chit.  C.  L.  307),  a  large  portion  of  the  following  notes  rests,  is  to  render  the 
assignments  of  perjury  intelligible,  where  they  would  otherwise  require  explanation.  It  is 
not  safe,  however,  to  go  beyond  what  is  actually  essential  for  the  purpose.  Thus,  it  is 
unnecessary  to  set  out  the  continuances  of  the  former  prosecution,  1  Leach  201,  or  to  state 
out  of  what  office  process  issued,  in  case  of  perjury,  on  a  bill  of  Middlesex,  though,  if  a 
wrong  office  be  stated,  the  indictment  would  be  defective,  Peake  N.  P.  112  ;  Cro.  C.  C.  339, 
356 ;  and  where  a  complaint  was  made  ore  tenus,  by  solicitor  to  the  Court  of  Chancery,  of 
an  arrest  in  returning  home  after  the  hearing  of  a  cause,  it  was  holden  sufficient  to  state, 
that  "at  and  upon  the  hearing  of  the  said  complaint  the  defendant  swore,"  tfcc,  and  there 
was  no  occasion  for  any  positive  averment  of  the  hearing  of  the  application  ;  1  T.  R.  74. 
The  usual  and  most  regular  course  is  to  aver  that  a  certain  cause  had  arisen,  and  was  de- 
pending, and  came  on  to  be  tried  in  due  form  of  law,  or  that  at  sucli  a  court  I.  K.  was  in 
due  form  of  law  tried  on  a  certain  indictment  then  and  tliere  depending  against  him  for 
murder,  and  that  the  perjury  was  committed  on  the  trial  either  of  the  civil  or  criminal  pro- 
ceeding; 5  T.  R.  318;  Cro.  C.  C.  7lh  ed.  612,  n.  a.  A  variance  in  setting  out  this  matter 
of  inducement  would  be  fatal,  if  the  matter  stated  could  not  be  rejected  as  surplusage.  A 
clerical  error  will  be  no  variance;  5  T.  R.  311  ;  2  Campb.  139;  1  Leach  192;  1  Campb. 
4i)4;  1  Esp.  R.  97;  9  East  137;  ]  Ld.  Raym.  701 ;  13  East  547.  But  where  the  indict- 
ment  purported  to  set  out  the  substance  and  effect  of  the  bill,  and  stated  an  agreement  be- 
tween the  prosecutor  and  defendant  respecting  houses,  and,  upon  the  bill  being  read,  the 
word  house  was  in  the  singular  number,  the  variance  was  held  fatal;  I  R.  &.  M.  98.  So, 
an  omission  to  charge  in  the  bill  of  indictment,  that  tiie  matter  of  traverse  tried  between 
the  State  of  Tennessee  and  D.,  touching  which  the  defendant  gave  his  evidence,  was  by 
indictment  or  presentment,  is  fatal;  Steinson  v.  State,  6  Yerg.  531.  It  is  not  necessary 
that  it  should  appear  whether  tlie  witness  was  compelled  to  attend  court  by  subpa?na-,  or 
wlielher  he  attended  voluntarily  ;  nor  whether  the  false  testimony  was  given  in  answer  to 

•J  4 


278  OFFENCES  AGAINST  SOCIETY. 

iiiously  stolen,  taken  and  carried  awaj^  nineteen  dollars  of  the  moneys 
ot'one  J.  E.j  and  thai  at  llie  said  trial,  so  then  and  there  had  as  afore- 

a  specific  question  put  to  him,  or  in  the  course  of  his  own  relation  of  facts;  but  it  is  suffi- 
cient if  it  be  averred  tliat  an  issue  was  duly  joined  in  court,  and  came  on  to  be  tried  in  due 
course  of  law;  and  that  the  court  had  competent  authority  to  administer  the  oath,  without 
au  express  averment  that  the  court  had  jurisdiction  of  the  cause  of  action;  1  Chip.  Verm. 
R.  12U;  Com,  v.  Knight,  12  Mass.  274. 

Any  essential  variance  in  the  statement  of  the  circumstances  attending  the  administer- 
iiiijr  the  oath  is  fatal.  State  v.  Street,  1  Murph.  156;  Leach  150,  3d  ed.  179  ;  State  v.  Hard- 
wok,  2  Mo.  165;  14  East  218,  n.  a.,  and  see  3  Stark,  on  Evid.  1136,  where  the  indict- 
ment alleged  that  the  cause  came  on  to  be  tried  before  Lloyd,  Lord  Kenyon,  &c.,  William 
Jones  being  associated,  &c.,  and  from  the  judgment  roll  it  appeared  that  Roger  Kenyon 
wjs  associated,  &-c.;  the  variance  was  held  fatal,  1  Esp.  R.  97.  Where  in  an  indictment 
lor  perjury  in  an  answer  to  a  bill  of  chancery,  the  bill  was  described  as  exhibited  against 
three  persons  onl}',  when  in  fact  it  was  against  four,  it  was  held  that  this  was  no  variance; 
1  R.  &  M.  101.  Where  an  indictment,  iu.setting  out  the  record  of  a  conviction,  stated  an 
adjournment  to  have  been  made  by  Const,  Esq.,  and  A.  B.  C.  and  D.,  and  others  their  fel- 
lows, 6jc.,  justices,  and  an  examined  eo])y  oi'  the  record  of  conviction,  when  produced, 
stated  the  adjournment  to  have  been  made  by  Const,  Esq.,  and  E.  F.  G.  and  others,  S(c.,  the 
variance  was  held  fatal,  unless  the  defect  was  supplied  by  evidence  of  an  adjournment 
m:ide  by  the  persons  stated  in  the  indictment;  1  R.  &,  M.  171.  Where  it  becomes  neces- 
sary, in  charging  the  commission  of  the  offence,  to  allege  that  a  certain  term  of  a  county 
court  was  duly  Jiolden,  it  is  not  sufficient  that  it  was  holden  by  and  before  the  chief  judge 
of  such  court,  without  mention  of  any  assistant  judges.  If  either  of  the  judges  is  named, 
it  should  appear  that  at  least  a  quorum  of  the  court  held  the  term;  State  v.  Freeman,  15 
Verm.  723;  see  Resp.  v.  Newell,  3  Yeates  407.  Where  the  indictment  alleged  a  bill  of 
discovery  filed  in  tlie  Exchequer  (in  the  answer  to  which  perjury  was  assigned),  to  have 
been  filed  on  a  day  s|)eeified,  viz,  first  of  Deeemher,  1807,  and  it  appeared  on  the  produc- 
tion of  tlie  bill  to  have  been  filed  in  the  preceding  Michaelmas  term,  according  to  the 
practice  of  the  court,  where  a  bill  is  filed  in  vacation,  it  was  held  that  the  variance  was 
immaterial,  the  day  not  hnving  been  alleged  as  part  of  the  document,  1  Stark.  R.  521  ;  and 
where  tlie  perjury  was  assigned  in  answer  to  a  hill  alleged  to  have  been  filed  in  a  particu- 
lar term,  and  a  copy  produced  was  of  a  bill  amended  in  a  subsequent  term  by  order  of  the 
■court,  it  was  held  to  ,be  no  variance,  the  amended  bill  being  part  of  the  original  bill;  3 
Stark,  on  Evid.  1138.  '  Where  the  bill  was  alleged  to  have  been  filed  by  Francis  Caven- 
(;ish  Aberdeen,  and  others,  and  on  the  production  of  tlie  bill  it  purported  to  have  been  filed 
by  J.  C.  Aberdeen,  and  others,  the  variance  was  held  to  be  immaterial,  evidence  being 
given  that  Francis  Cavendish  Aberdeen,  and  the -other  persons  named,  did  in  fact  file  the 
hill,  although  it  was  objected  that  it  ought  to  have  been  averred  in  the  indictment,  that 
Francis  Cavendish  Aberdeen,  &.c.,  filed  their  bill  by  the  name  of  J.  C.  Aberdeen,  &c.,  and 
nithough,  after  setting  out  the  material  parts  of  the  bill,  the  words  were  added,  '■'■  a»  ap- 
pears by  the  said  bill,  filed  of  record;"  1  Stark.  518;  3  T.  R.  601  ;  2  Campb.  139.  In  an- 
nther  case  the  indictment  charged  the  alleged  false  evidence  as  given  in  the  Palace  Court, 
described  the  court  as  "  the  Court  of  the  King's  Palace,  at  Westminster,"  and  it  appeared 
from  the  record  of  the  trial  belnw,  that  it  was  called  "  the  Court  of  the  King's  Palace  of 
Westminster,"  it  was  held  no  variance;  3  1).  &-  R.  234.  So  where  it  was  averred  that  the 
cause  in  which  the  alleged  perjury  was  comniitted,  "  came  on  to  be  tried,  and  was  then  and 
there  duly  tried  by  a  jury  of  the  county,^''  and  the  record  of  the  trial  stated  that  the  jury 
came  of  the  neighbourhood  of  Westminster,  it  was  held,  that  the  cause  was  in  fact  so  tried, 
and  no  county  being  mentioned  in  the  record,  it  was  no  objection  ;  ih.  It  has  been  held, 
that  though  there  be  two  counts  in  the  original  proceeding,  yet  an  averment  that  an  issue 
came  on  to  be  tried  will  be  no  variance;  Peake's  R.  37. 

In  an  indictment  flir  perjury  in  lakinj;  a  fiilse  oath  before  aregimental  court  of  inquiry, 
tijc  indictment  ought  to  set  forth  of  what  number  of  officers  the  said  court  of  inquiry 
Consisted,  and  what  was  their  respective  rank,  so  as  to  enable  the  court  to  discern  whether 
the  said  court  ofinquiry  was  constituted  accoiding  to  law  ;  Com.  u.  Conner,  2  Va.  Cases  30. 
Where  an  indictuunt  charged  the  delendant  with  |)erjuryin"a  matter  of  traverse  then 
and  there  tried,  between  the  State  of 'rcmicssee  and  I).,  for  an  assault  and  battery,"  it  was 
held  that  this  was  not  a  sufficient  charge  of  the  jurisdiction  of  the  court  before  which  the 
case  was  tried;  Steinson  c.  Slate,  G  Yerg  531.  Even  if  the  |)laintiff  offer  himself  as  a  wit- 
ness, IS  sworn,  and  testifies  t'alsely,  petjuiy  may  be  assigned  on  the  oath  thus  taken,  lhou;>h 
li(:  was  incompetent  as  a  witness,  piovided  llic  jnstiec  had  jurisdiction  of  the  subject  matter; 
Miiiitgomery  r.  Stale,  Wilcox  220.  WIk  le  ihc  (.'eliiidaiit  is  indicted  for  perjury,  committed 
on  the  trial  of  an  issue  in  a  (()riner  indictment,  the  indictment  must  set  fbitli  the  finding 
of  the  former  indictment  in  the  proper  court  of  the  proper  coutity,  and  should  also  set  forth 


PERJLT.V.  271) 

said,  J.  S.,  late  of  labourer,  appeared  as  a  witness  for  and  on  be- 

half of  the  said  G.  B.  upon  the  said  trial,  and  was  sworn  and  took  his 
corporal  oath  before  the  said  J.  M.  and  J.  S.,  justices  as  aforesaid,  on 
the  holy  gospel  of  God,  to  speak  the  truth,  the  whole  truth  and  no- 
thing but  the  truth,  of,  upon  and  concerning  the  matter  then  depend- 
ing,(c)  (they  the  said  J.  M.  and  J.  S.,  justices  as  'aforesaid,  then  and 
there  having  sufficient  and  competent  power  and  authority  to  admin- 
ister an  oath  to  the  said  J.  S.  in  that  behalf), (of)  whereupon  it  then 
and  there  became  a  material  inquiry  on  the  trial  of  the  said  issue, 
whether  {here  state  the  several  questions):[e)  and  the  said  J.  S.  being 

that  indictment,  or  so  much  thereof  as  to  show  that  it  chartred  an  offence  in  that  county, 
and  of  which  said  court  had  recognizance,  and  also  the  traverse  or  plea  of  defendant  in 
that  indictment,  whereon  the  issue  was  joined.  Judgment  on  an  indictment,  defective  in 
these  particulars  must  be  arrested;  State  v.  Galiimore,  2  Iredell  374.  On  a  conviction  for 
perjury  in  Rutherford  County,  Noith  Carolina,  two  reasons  were  assigned  in  arrest  of  judo- 
ment;  1st.  That  tlie  indictment  did  not  charge  tliat  the  oath  was  taken  in  Rutherford 
(.'ounty  ;  2d.  Nor  that  the  evidence  was  given  to  the  court  and  jury,  but  to  the  jury  only. 
The  first  reason  was  overruled,  the  indictment  charging  that  "he,  the  said  A.  B.  on  the 
-16th  of  April,  in  the  year  aforesaid,  in  the  county  aforesaid,  came  before  the  said  C.  D., 
judge  as  aforesaid,  and  then  and  there,  before  the  said  C.  D.,  did  take  his  corporal  oatii." 
The  part  of  tlie  indictment  immediately  preceding  stated  thut  C.  D.  lield  the  court  as  judge 
at  that  term  in  Rutherlord  County;  the  same  county  was  inserted  in  the  caption  of  the  in- 
dictment,  and  there  was  none  other  mentioned  in  any  part  of  it;  the  words  "then  and 
there,"  refer  to  the  16lh  of  April  and  to  the  County  of  Rutherfoid.  The  second  reason 
was  overruled,  as  the  indictment  cliarged  that  the  oath  was  taken  before  the  judge,  and^ 
the  evidence  was  thereupon  given  to  the  jurors.  This,  it  was  held,  was  the  proper  way  of 
stating  the  oath;  State  v.  VVitherow,  3  Murph.  153.  Where  the  indictment  alleged  the 
false  oath  to  have  been  taken  before  the  board  of  inspectors,  tScc,  (they  being  qualified  to 
administer  it),  it  is  a  sufficient  averment  of  the  fact  that  the  oath  was  administered  by  the 
board;  Campbell  v.  People,  8  Wend.  636.  Where  perjury  was  charged  to  have  been  com- 
Hiittcd  in  that  which  was  in  effect  an  affidavit  on  an  interpleader  rule,  and  the  indictment 
set  out  the  circumstances  of  the  previous  trial,  the  verdict,  the  judgment,  the  writ  oi  fieri 
fncins,  the  levy,  the  notice  by  the  prisoner  to  the  sheriff  not  to  sell,  and  the  prisoner's 
affidavit  that  the  goods  were  liis  property,  but  omitted  to  state  that  any, rule  was  obtained 
according  to  the  provisions  of  the  interpleader  act ;  it  was  held,  tliat  the  indictment  was 
bad,  as  the  affidavit  did  not  appear  to  have  been  made  in  a  judicial  proceeding;  R.  v. 
Bishop,  1  C.  &.  M.  302. 

(c)  It  must  appear  that  the  defendant  was  retrularly  sworn.  In  case  of  an  affidavit  the 
jurat  need  not  be  set  out ;  9  East  437  ;  nor  need  the  affidavit  be  stated,  or  proved  to  have 
been  affiled  in,  or  exhibited  to  the  court,  or  in  any  other  manner  used  by  the  defendant  or 
others;  7  T.'  R.  315.  It  is  enough  if  it  be  stated  that  the  defendant  was  in  due  manner 
sworn,  though  betook  the  oath  according  to  the  ceremonies  of  a  particular  religion  ;  Peake 
N.  P.  155  ;  12  Vin.  Ab.  T.  28  ;  2  Keb.  314.  And  if  he  were  sworn  twice,  first  in  the  usual 
firm,  and  afterwards  after  his  own  method,  to  state  that  he  was  sworn  on  the  holy  gospel 
of  God  will  suffice,  though  had  he  been  sworn  only  in  the  latter  way  the  variance  would 
liave  been  fatal;  ih.;  Cro.  C.  C.  7 ;  ib.  575,  n.  c;  see  State  v.  Whisenhunt,  2  Hawks  458. 
An  indictment  for  perjury,  which  avers  that  the  defendant  did  "  then  and  there,  in  due 
form  of  law,  take  his  corporal  oath,"  without  stating  that  he  was  sworn  on  the  gospels,  or 
by  uplifted  hand,  is  sufficiently  certain;  Res.  v.  Newell,  3  Yeates  41)7;  see  State  v.  Free- 
man, 15  Verm.  723  ;  Montgomery  v.  State,  Wilcox  220;  ante,  p.  278. 

(d)  This  averment  should  always  appear;  Wh.  C.  L.  477.  In  an  indictment  for  making 
a  false  atlidavit,  it  is  sufficient"  to  state,  that  the  defendant  came  before  A.  and  took  his^ 
corporal  oath  (A.  having  power  to  administer  an  oath),  without  setting  out  the  nature  of 
A.'s  authority;  Rex  v.  Callanrfn,  6  B.  &  C.  102;  see  State  v.  Ludlow,  2  South.  R.  772; 
Campbell  v.  People,  8  Wend.  638;  People  v.  Phelps,  5  Wend.  10;  Rex  v.  Howard,  M.  &. 
R.  187;  State  v.  Galiimore,  2  Iredell  372. 

(p)  Materiality  must  be  averred  or  implied;  1  T.  R.  69;  5  T.  R.  318;  Comb.  461; 
Cro.  Eliz.  428;  Com.  R.  43 ;  8  Ves.  35;  2  Bridgman's  Index  .305;  2  Ld.  Raym.  889;  Holt 
5!5  ;  Cro.  C.  C.  7th  ed.  613,  n.  a.;  1  R.  &  M.  147  ;  R.  v.  M'Kernon,  2  Russ.  541  ;  Camp- 
bell V.  People,  8  Wend.  636  ;  [lineh  v.  State,  2  Mo.  8;  Weathers  v.  State,  2  Blackf  279  ;  Com. 
V.  Knight,  12  .Mass.  R.  274;  State  v.  Havward,  1  N.  &  M'(\  547;  State  v.  Hattawav,  2  N. 
&.  M'C.  118;  State  c.  I)u<id,  2  .Murph.  226  ;  Rex  ».  Niclioli,  I  B.  &.  Ad.  21  ;  2  Stark.  Ev. 
new  ed.  626 ;  State  v.  Amnions,  2  Murph.  123 ;  though  all  the  circumstances  which  make 


280  OFFENCES  AGAIiVST  SOCIETY. 

SO  sworn  as  aforesaid,  wickedly  contriving  and  intending  to  cause  the 
said  G.  B.  unjustly  to  be  acquitted  of  the  said  felony,  did  then  and 
there  knowingly,  ialsely,(/)  corruptly,  wilfully  and  wickedly  say,(^) 

such  materiality  need  not  be  stated,  State  v.  Mumford,  1  Dev.  519;  it  being-  only  neces- 
sary to  say  that  tliey  became  and  were  so ;  5  T.  R.  318 ;  see  Ld.  Raym.  889  ;  though  it  will 
be  proper  to  stale  any  circumstances  to  which  the  assig-nnient  of  perjury  must  afterwards 
refer ;  1  T.  R.  C6.  The  express  allcjjution  of  materiality  may  be  properly  omitted  where 
the  materiality  of  the  question  evidently  apjiears  on  the  record,  as  where  the  falsehood 
affects  the  very  circumstances  of  irnioeenco  or  guilt,  or  where  the  perjury  is  assigned  in 
documents  from  the  recital  of  which  it  is  evident  that  tiie  perjury  was  important;  Camp- 
bell V.  People,  8  Wend.  638,  639;  see  Trem.  P.  C.  139,  &e.,  and  7  T.  R.  315;  2  Stark.  C. 
L.  423,  n.  Perjury  may  be  assigned  upon  a  man's  testimony  as  to  the  credit  of  a  witness; 
2  Salk.  514.  So,  every  question  in  cross-examination  which  goes  to  the  witness'  credit,  is 
material  for  this  purpose  ;  Reg.  v.  Overton,  2  Mood.  C.  C.  263 ;  C.  Si,  M.  655.  Or  he  may 
be  perjured  in  his  answer  to  a  bill  in  equity,  though  it  be  in  matter  not  charged  by  the 
bill;  5  Mod.  348;  semble,  1  Sid.  274,  106;  see  R.  v.  Dunston,  R.  &,  M.  109 ;  R.  v.  Yates, 
C.&M.  132. 

(/)  It  must  be  charged  that  the  defendant /c/ZseZy  swore,  &c.,  2  M.  &  S.  385;  and  if  the 
same  person  swears  contrary  ways  at  diflerent  times,  it  is  necessary  to  aver  on  which  oc- 
casion he  swore  wilfully,  falsely  or  corruplly ;  5  B.  &  Ad.  926  ;  1  D.  &,  R.  578,  S.  C.  The 
English  cases  tend  to  the  doctrine  tlial  the  word  "  wilfully.,"  &lc.,  is  not  necessary,  it  being 
implied  trom  the  words,  "  t'alscly,  maliciously,  wickedly  and  corruptly;"  1  Leach  71 ;  see 
Kcx  V.  Richards,  7  D.  &  R.  665;  Rex  v.  Stevens,  5  B.  &  C  246.  But  in  this  country  an 
indictment  charging  that  the  defendant  "being  a  wicked  and  evil  disposed  person,  and  un- 
lawfully and  unjustly  contriving,  &.c.,  deposed,"  «Ste.,  and  concluding  that  the  defendant 
"  of  his  wicked  and  corrupt  mind  did  commit  wilful  and  corrupt  perjury,"  is  defective  even 
at  common  law,  lor  not  alleging  that  the  defendant  willully  and  corruptly  swore  falsely; 
Stale  V.  Carland,  3  Dev.  114.  In  another  case,  however,  an  indictment  which  stated  that 
the  defendant  "did  voluntarily  and  of  his  own  free  will  and  accord,  propose  to  purge  him- 
hcW  upon  oath  of  the  said  contempt,"  negativing  by  express  averments  the  truth  of  the 
oath,  and  concluding  that  tlie  defendant  "did  knowingly,  falsely,  wickedly,  maliciously 
and  corruptly  commit  wilful  and  corrupt  perjury,"  was  held  good;  Res.  v,  Newell,  3  Yeates 
407. 

ig)  The  usual  method  of  introducing  the  alleged  false  evidence  is,  that  the  defendant  did 
falsely  swear  or  say,  &.C.,  as  in  the  text,  1  T.  R.  64,  or  did  swear  "in  substance  and  to  the 
efiict  fijllowing,"  2  Campb.  138;  Cro.  ().  C.  7th  ed.  573,  n.  a,,  and  cases  there  cited;  "or  in 
iiiiinner  and  form  following,  that  is  to  say,"  which  allow  of  a  greater  latitude  than  "  the  tenor 
following),"  or  words  requiring  a  literal  recital.  People  u.  Warner,  5  Wend.  271  ;  1  Jjcach 
192;  'i'rem.  P.  C.  139;  1  T.  R.  64;  and  then  stating  the  precise  words,  with  innuendoes, 
or  the  substance  of  what  was  sworn  to;  a  variance,  however,  in  the  latter  case,  which 
alters  the  sense,  will  be  fatal;  1  Leach  133.  The  same  rigour  as  was  noticed  in 
another  place,  Wh.  C.  L.  89,  160,  480,  has  not  been  required  in  this  country  in  the  setting 
forlli  of  the  alleged  filse  oath  of  the  defendant,  as  under  the  statute  of  Elizalicth,  was  con- 
sidered essential  in  England.  Thus,  it  is  said,  that  at  common  law  it  is  only  necessary  to 
set  rjut  llic  suhstanee  of  the  oath,  and  when  that  is  done,  an  exact  recital  is  not  necessary; 
and  accordingly  where  the  article  "an"  was  substituted  for  the  article  "the,"  the  variance 
was  held  immaterial;  Peij|)le  «.  Warner,  5  Wend.  271  ;  State  v.  Amnions,  3  Mut|)h.  123. 
Where  the  tenor  of  an  affidavit  is  undertak(;n  to  be  recited,  and  the  recital  be  variant  in  a 
word  or  letter,  so  as  thereby  to  create  a  diffc;rciit  word,  it  is  fatal.  But  where  a  statement 
of  the  substance  and  effect  of  an  affidavit  is  sulficient,  and  nothing  more  is  pretended  to  bo 
done,  evidence  of  the  substance  and  effect  is  suflieient.  Where  the  charge  was  in  swear- 
ing to  an  affidavit,  "  to  the  substance  and  eHect  following,"  a  variance,  which  consisted  in 
using  the  words  "suit"  insUvid  of  "case,"  was  deemed  itamaterial;  State  v.  Cofiee,  N.  C 
T.rm.  R.  272,  S.  C;  2  Murph.320. 

Mar<:y  J.,  in  Peo|)l(!  v.  Warner,  5  Wend.  271,  examines  with  great  fairness  the  degree 
of  particularity  necessary  in  setting  forth  the  words.  "If  the  public  prosecutor,"  he  said, 
"  was  bound  to  set  fiirth  with  literal  and  [)erfect  accuracy,  the  objection  was  well  taken. 
lOvcn  if  lie  has  needlessly  undertaken  to  state  it  in  hax  verha,  there  are  not  wanting  au- 
tlioritif^s,  which  declare  that  a  failure  in  the  slightest  degree,  in  halfa  letter,  to  use  a  hy|)er- 
i)olical  expression  of  Lord  Mansfield,  will  be  fatal. 

"  It  was  scarcely  contended,  on  the  argument,  that  it  was  absolutely  necessary  to  srt 
forth  the  oath  in  its  exact  words.  'I'he  rule  on  Ibis  suliji^ct  seems  to  be,  that  v.'riltcn  in- 
struments, where  they  form  a  [lart  of  \.\u;  irixl  of  the  r)tf('rice  ehargcul,  must  be  set  forth  ver- 
htiliin.  In  the  case  of  for^'ory,  the  sjiuriou-i  instruinrait  mu.-il  he  set  forlli  in  its  very  ^vo^ds 
unu  figuicH;  Arcii.  C>  P.  23;  1  East  loO;  Leach  721  ;  but  in  perjury  the  rule  is  ditfcrcnt. 


PERJUKV.  2S1 

depose  and  give  in  evidence,  to  the  jurors  of  the  jprj"-  then  and  there 
duly  taken  and  sworn  hetween  the  sai(J  state  and  the  said  (j.  B.,  hefure 
the  said  J.  M.  and  J.  S.,  justices  as  aforesaid,  that  he  the  said  J.  S. 
on  the  second  day  of  K.  races  (meaning  the  twenty-sixth  of  July,  in 
the  year  of  our  Lord  one  thousand  seven  hundred  and  seventy-five, 
being  the  second  of  three  successive  days  on  which  certain  horse  races 
were  run  at  K.  in  the  said  County  of  Chester,  in  that  year),(A)  was  in 
a  certain  booth  at  K.  aforesaid  known  by  the  sign  of  the  bull's-head, 
kept  by  one  R.  G.,  and  that  he  the  said  J.  E.  carne  into  the  said  booth 
and  sat  down  by  him  (meaning  himself  the  said  J.  S.)  on  the  left  hand 
side;  and  that  he  (meaning  himself  the  said  J.  S.)  asked  the  said  J. 
E.  if  he  (meaning  the  said  J.  E.),  was  not  ill,  and  that  he  (mean- 
ing the  said  J.  E.)  said,  I  (meaning  himself  the  said  J.  E.)  am  well 
enough,  I  (meaning  himself  the  said  J.  E.)  have  been  playing  at  cards 
with  a  parcel  of  men  and  have  lost  a  great  deal  of  money;  and  that 

'  It  is  not  necessary,'  says  Mr.  Archbold, '  to  set  forth  the  affidavit,  answer,  «fcc.,  on  which 
the  perjury  is  ass'ifrncd,  verbatim;  for  the  statute  of  23  Geo.  II.,  only  requires  the  substance 
of  the  offence  to  be  charged.  Our  revised  laws  of  1813,  contain  a  provision  siinibr  to  the 
•net  23  Geo.  II.,  and  if  it  applies  to  this  case,  it  was  not  necessary  to  state  in  the  indict- 
ment more  than  the  substance  of  the  oath.  It  the  revised  statutes  are  a|)plicable  to  this 
case  (and  that  they  are  is  settled  by  this  court  in  the  case"  of  Tlie  Peojile  v.  Phelps,  de- 
cided at  the  last  term),  then  no  defect  or  imperfection  in  matter  of  fornri,  which  does  not  tend 
to  the  prejudice  of  the  defendant,  can  be  alleged  against  the  indictment;  2  R.  S.  728,  s.  52. 
Whether  we  apply  to  this  case  the  revised  statute  or  the  law  as  it  stood  previous  to  the  last 
revision  (and  by  one  or  the  otlicr  it  must  be  governed),  it  is  quite  evident  that  tJiere  was 
no  necessity  of  setting  forth  the  oath  taken  by  the  defendant,  with  absolute  accuracy ;  yet 
if  the  pleader  has  heedlessly  undertaken  to  do  so,  it  may  be,  lie  should  be  holdcn  to  a  strict 
performance. 

"The  indictment  alleges. that  the  oath  on  which  the  perjury  is  assigned,  is  in  substance 
and  to  the  effect  following,  to  wit,  &,«.  Whether  it  was  intended  in  this  case  to  set  fortii 
the  oath  verbatim,  depends  upon  the  true  definition  of  the  word  '  effect.'  Tlie  word  '  tenor' 
has  a  technical  meaning  and  requires  an  exact  copy ;  and  the  defendant's  counsel  inters 
that  because  'effect'  is  often  used  with  it,  a  like  meanincr  is  to  be  jiut  on  that  word.  The 
inference  does  not  strike  me  as  conclusive  or  correct ;  because  ihe  tenor  and  effect  require 
an  e.xact  copy,  it  is  not  to  be  inferred  tiiat  substance  and  effect  require  as  much.  Tlie  or- 
dinary meaning  of  the  word  ^effect,'  as  well  as  judicial  decisions  thereon,  refute  the  inter- 
pretation which  the  defendant's  counsel  has  given  to  it.  Where  an  instrument  was  alleged 
to  be  '■tothe  effect  following,'  a  literal  copy  was  not  required  ;  .Arch.  C'.  P.  6"<.  Even  ihe 
Words  'in  manner  and  form  following,'  do  not  require  a  perfect  copy;  1  Douijl.  193;  I 
Leach  227.  It  is  expressly  said  in  King  v.  Bear,  2  Salk.  417,  that  the  words  ad  effectiini 
srquentem  were  loose  and  useless  when  joined  to  juxta  lenorem.  To  my  apprehension,  the 
substance  and  effect  of  an  instrument  in  writing  cannot,  either  in  common  parlance  or 
legal  import,  be  understood  to  mean  an  exact  copy  of  it.  My  conclusion  is,  that  the  law 
did  not  make  it  necessary,  nor  did  the  pleader  attempt  in  this  case  to  set  forth  the  oath 
taken  by  the  defendant  literally,  and  that  the  variance  between  the  oath  produced  in  evi- 
dence  and  that  set  forth  in  the  indictment,  is  wholly  immaterial ;  all  apprehensions  there- 
fore that  the  defendant,  if  sentenced  and  punished  on  this  indictment,  would  be  exposed  to 
a  second  prosecution  for  the  same  offence,  appear  to  me  to  be  wholly  imagmary  ;  but  if 
this  application  on  his  part  should  prevail,  any  fuither  effort  to  bring  him  to  punishment 
would  probably  be  defeated  by  a  plea  of  autrefois  acquit. 

"  I  am  of  opinion  that  the  court  below  decided  correctly  in  adjudging  the  variance  to  be 
immaterial,  and  that  the  exception  to  the  decisions  of  that  court  is  not  well  taken.  The 
General  Sessions  are  therefore  advised  to  render  judgment  upon  the  conviction." 

(/*)  The  office  of  an  innuendo  will  be  discussed  more  fully  in  the  [ircliminary  notes  to 
the  chapter  on  libel,  and  it  will  be  shown  that  it  is  a  mode  of  explaining  some  matter 
already  expressed,  and  serves  to  point  and  elucidate  precedent  matter,  though  it  can  never 
introduce  charges,  or  add  to  or  vary  the  sense  of  those  already  made;  1  Chit.  C.  L.  310  ; 
Stark.  C.  P.  126.  It  means  nothing  more  tlian  the  r-.-ords  id  est,  scilicet,  aforesaid,  Alc., 
being  merely  an  explanation  of  what  has  gone  before;  ib.;  Cowp.  6^!4.  Wlieie  the  innu- 
endo and  tiie  matter  it  introduces,  are  altogether  impertiuent  and  immaterial,  thf;y  may  be 
lejected  as  superfluous;  1  T.  R.  05  ;  9  East  93  ;  see  3  Canipb.  -IGl ;  7  Price  514. 

24* 


282  OFFKNCES  A(JAINST  SOCIETY. 

lie  t!ie  said  J,  S.  said,  man  (meaning  tlie  said  J.  E.),  I,  (meaning  him- 
self the  said  J.  S.),  am  very  sorry  tor  you  (meaning  ihe  said  J.  E.)  ; 
and  that  the  said  J.  S.  upon  his  oath  aforesaid,  before  the  said  jury  so 
taken  between  the  said  state  and  the  said  G.  B.  and  the  said  J.  M. 
and  J.  S.,  justices  as  aforesaid,  did  further  say,  depose,  swear  and  give 
in  evidence,  that  the  said  J.  E.  then  and  there  took  him  the  said  J.  S, 
by  the  hand,  and  said,  I  (meaning  himself  the  said  J.  E.),  wiU  never 
play  at  cards  any  more  ;  whereas  in  trntli  and  in  fact(/),  the  said  J.  E. 
did  not  sit  down  by  the  said  J.  S.  in  the  said  booth  on  the  twenty- 
sixth  day  of  July,  and  whereas  in  truth  and  in  fact,  the  said  J.  S.  did 
not  ask  the  said  J.  E.  whether  he  was  well  or  not,  and  whereas,  in 
truth  and  in  fact,  the  said  J.  E.  did  not  say  to  the  said  J.  S.  that  he 
was  well  enough,  and  whereas  in  truth  and  in  fact,  the  said  J.  E.  did 
not  say  to  the  said  J.  S,  that  he  the  said  J.  E.  had  been  playing  at 
cards  with  a  parcel  of  men  and  had  lost  a  great  deal  of  money,  and 
whereas  in  truth  and  in  fact,  the  said  J.  S,  did  not  say  W  the  said  J. 
E.  that  he  (meaning  himself  the  said  J.  S.),  was  sorry  for  him 
(meaning  the  said  J.  E.),  and  whereas  in  truth  and  in  fact,  the  said 
J.  E.  did  not  say  to  the  said  J.  S.  that  he  would  never  play  at 
cards  any  more,  and  whereas  in  truth  and  in  fact,  the  said  J.  E. 
had  not,  on  tlie  said  day  of  any  conversation  whatso- 

ever with  the  said  J.  ^.',{j)  and  so  the  jurors  aforesaid  now  here  sworn 

(f)  Tlie  general  averment  that  the  defendant  swore  falsely,  &c.,  upon  the  whole  matter, 
will  not  be  sufficient ;  the  indictment  must  proceed  by  particular  averments  (or,  as  they  are 
technically  termed,  by  assigimients  of  perjury),  to  negative  that  which  is  false.  It  is  ne- 
cessary that  the  indictment  should  expressly  contradict  the  matter  falsely  sworn  to  by  the 
defendant.  Sometimes  it  is  also  necessary  to  set  forth  the  whole  matter  to  which  the  de- 
fendant swore,  in  order  to  make  the  rest  intelligible,  tiiough  some  of  the  circumstances  had 
a  real  existence;  but  the  word  "  falsely"  docs  not  import  that  the  whole  is  false  ;  and  when 
the  proper  averments  come  to  be  made,  it  is  not  necessary  to  negative  the  whole,  hut 
only  sucli  parts  as  the  prosecutor  can  falsify,  admitting  the  truth  of  tlie  rest;  Wh.  C."L. 
480.  "  The  object  of  the  assignment  of  perjury  is  to  fiilsify,  by  averments  in  tlie  indictment, 
tiiose  parts  of  tlie  defendant's  allegations  on  oath,  in  which  it  is  intended  to  charge  him 
on  the  trial  with  having  committed  the  oftVnce  in  question  ;"  2  M.&  S.  385  to  3!I2.  Where 
tlie  party  has  sworn  contrary  ways  at  different  times,  it  must  be  expressly  shown  m 
such  case,  which  was  the  false  oath  ;  .5  B  &  A.  922  ;  1  D.  &  R.  578,  S.  C.  These  should 
be  specific  and  distinct,  in  order  that  the  defendant  may  have  notice  of  what  he  is  to  come 
prepared  to  defend  ;  see  ih.;  and  it  would,  therefore,  be  insufficient  to  aver  generally  and  in- 
definitelv  that  the  defendant's  oath  was  false.  In  many  instances,  however,  the  indictment 
may  not  be  vitiated  by  the  assignment  being  rather  more  com[)rchensive  than  the  term  of 
the  defendant's  evidence.  Thus  if  tlic  defendant  swore  "  that  he  never  did,  at  any  time 
during  his  transactions  with  the  victualling  office,  charge  more  than  the  usual  sum  per 
quarter,  beyond  the  price  he  actually  |)aid /or  any  grain  purchased  by  him  for  the  said 
roiimiissioncrs  as  their  corn  factor,"  and  this  assertion  be  contradicted  by  an  averment 
that  "  he  did  charge  more  than  the  usual  sum  per  quarter /or  and  in  respect  of  such  malt 
or  grain,"  the  indictment  will  not  be  vitiated  by  the  introduction  of  the  words  "and  in 
respect  of;"  R.v.  Atkinson,  Cro.  Circ.  Assist.  437  to  451  ;  Hac.  Abr.  Perjury,  C;  I  Saund.249, 
a.  note  1,  S.  C  It  is  enough  where  there  are  several  assignments  of  perjury  in  one  count,  to 
prove  one  of  them,  and  though  some  be  bad,  judgment  will  bo  given  on  the  sufficient  ns- 
signmr-nts;  2  I,d.  Uaym.  8H6;  2Campb.  138-!);  Cro.  C.  C.  7th  ed.  622;  State  v.  Hascall, 
r,  N.  Hamp.  n.  358;  State  v.  Hishop,  I  Chap.  110. 

( ji  In  negativing  the  defendant's  oath,  wliere  he  has  sworn  only  to  his  belief,  it  is  pro- 
proper  to  aver  that  "/«e  well  knew^''  the  contrary  of  what  lie  swore.  Thus,  when  the 
affidavit  upon  which  the  charge  of  perjury  is  (bunded,  merely  states  the  belief  of  the  affiant 
that  a  l:;rei-nv  had  been  committed,  the  assignment  ot"  the  perjury  must  negative  the  words 
of  the  affidavit,  and  it  is  not  sufficient  to  allc  ge  geruriilly  that  the  persons  ehaiged  eommit- 
led  not  the  larceny;  it  is  necessary,  when  the  delcndant  only  states  his  belief,  to  aver  that 
the  fuel  was  otherwi.-<c,  and  that  the  delcndant  knew  the  contrary  of  wiiut  he  swore;  Stale 


PERJURY. 


283 


upon  their  oath  aforesaid,  do  say,  that  the  said  J.  S.  at  the  said  court 
of  session  and  goal  dehvery,  &:c.,  before  the  said  J.  M.  and  J.  S,  then 
being  such  justices  as  aforesaid,  (and  then  and  there  having  sufficient 
and  competent  power  and  antliority  to  administer  the  said  oath  to  the 
said  J.  S.)  did  in  manner  and  form  aforesaid,  commit  wilful  and  cor- 
rupt perjury,(Ar)  against, &c.     {Conclude  as  in  book  \,  chap.  3). 

In  swearing  as  to  age  in  'procuring  money  of  the  United  States  in  enlist- 
ing in  the  navy  of  the  United  Status. {hk) 

That  late,  &c.,  on^  &c.,  at,  &c.,  wishing  and  intending  to  pro- 

cure the  expenditure  of  public  money  of  the  United  States  of  America, 
and  representing  himself  to  be  a  citizen  of  the  United  States  of  America, 
and  to  be  of  full  age,  to  wit, of  the  age  of  twenty-one  years  and  upwards, 
did  then  and  there  come  in  his  own  proper  person  before  ,  a 

in  the  navy  of  the  United  States  of  America,  duly  authorized 
and  empowered  to  enlist  persons  in  the  naval  service  of  the  said  Unit- 
ed States,  and  did  then  and  there  apply  to  the  said  to  enlist  him 
the  said  as  a  in  the  naval  service  of  the  said  United  States, 
he  the  said  then  and  there  contriving  and  intending  by  means 
of  such  enlistment,  so  applied  for  by  him  as  aforesaid,  to  procure  and 
l)ring  about  the  expenditure  of  public.money  of  the  said  United  States, 
and  the  payment  of  the  sum  of  ,  being  the  amount  paid  by  the 
said  United  States  to  on  their  enlistment  in  the  naval  service 
of  the  said  United  States,  as  he  the  said  then  and  there  well 
knew  and  understood,  and  that  it  being  then  and  there  material  that 
the  said  should  know  and  be  informed,  whether  the  said 
possessed  the  requisite  qualifications  for  enlistment  as  aforesaid,  and 
particularly  whether  or  not  the  said  was  then  and  there  a  citi- 
zen of  the  United  States  of  America,  and  was  then  and  there  of  the 
full  and  lawful  age  of  twenty-one  years,  he  the  said  in  pursu- 
ance of  the  regulations  and  requirments  of  the  department  of  the  navy 
of  the  said  United  States,  required  and  directed  the  said  to  make 
oath  and  depose  in  writing  in  regard  to  the  age  and  citizenship  of 
him  the  said  ,  before  a  notary  public  {or  otherwise) 
dwelling  in  said  City  of  New  York,  and  duly  authorized  and  empow- 
ered to  administer  oaths  in  the  said  City  of  New  York,  and  having 
competent  power  and  authority  to  administer  an  oath  in  the  premises 
to  the  said 

And  the  jurors  aforesaid,  on  their  oaths  aforesaid,  do  further  say, 
tliat  the  said  not  having  the  fear  of  God  before  his  eyes,  but 

being  moved  and  seduced  by  the  instigation  of  the  devil,  and  intend- 
ing to  defraud  the  United  States  of  America,  did  on  the  said 
day  of  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

V.  Lea,  3  Alabama  602.  Thus  an  indictment  against  an  insolvent  debtor  for  perjury  in 
swearing'  to  a  schedule  which  did  not  discover  certain  debts  owinij-  to  him,  \v,is  held  bad 
on  demurrer  for  not  averriii^r  tliat  he  well  knew  and  remembered,  tliat  the  omitted  debts 
^were  then  justly  due  and  owintj'  to  him  ;  Com.  v.  Cook,  I  Robin.  7:2.'). 

{k)  Tlie  usual  summinif  up  of  tiie  indictment  is  "that  so  the  defendant  did  comn:it 
wii'ul  and  corrupt  perjury,"  2  Loach  860;  S^tark.  4J5  ;  but  it  .seeips  that  this  allegation  li 
in)material,  see  2  Leach  ki6  ;   \Vh.  C-.  L.  232. 

{kk)  U.  S.  V.  O'Brien,  United  Slates  Circuit  Court,  New  York,  1847. 


284  orFExcES  acaixst  socikty. 

in  his  own  proper  person  go  before  the  said  at  the  City 

of  New  Yoric,  in  the  Southern  District  of  New  York  aforesaid,  he  the 
said  having  then   and  there  competent  power  and  authority  as 

aforesaid,  to  administer  an  oath  to  the  said  in  that  behalf,  and 

tlie  said  was  then  and  there  in  due  manner  sworn  by  the  said 

,  and  took  his  oath  before  the  said  in  due  form  of  law, 

and  did  then  and  there  falsely  and  corruptly  say,  depose,  swear  and 
make  affidavit  in  writing,  amongst  other  things  in  substance  and  to 
the  effect  following,  that  is  to  say,  that  he  the  said  was  born  in 

and  that  he  was  a  citizen  of  the  said  United  States  of  America, 
and  that  he  the  said  was  of  full  age,  to  wit,  of  the  age  of  twen- 

ty-one years  and  upwards,  whereas,  in  truth  and  in  fact,  the  said 
at  the  time  he  took  his  said  oath  and  made  his  attidavit  aforesaid, 
was  not  born  in  the  state  of  one  of  the  United  States  of  America, 

and  was  not  a  citizen  of  the  said  United  States  of  America,  but  was 
in  truth  and  in  fact  born  in  some  place  out  of  the  said  United 
States  of  America,  to  the  jurors  aforesaid  unknown,  and  was  not  of 
full  age,  to  wit,  of  the  age.of  twenty-one  years,  but  was  it?  truth  and 
in  fact  under  full  age,  an^i  under  the  age  of  twenty-one  years. 

And  the  jurors  aforesaid  on  their' oath  aforesaid,  do  say  that  the 
said  by  means  of  the  false  oath  aforesaid,  then  and  tliere  pro- 

cured himself  to  be  enlisted  in  the  naval  service  of  the  said  United 
States,  and  then  and  there  procured  and  brought  about  the  expendi- 
ture of  public  money  of  the  United  States  of  America,  and  procured 
the  payment  to  himself  out  of  public  money  of  the  said  United  States 
of  the  sum  of  and  so  the  jurors  aforesaid  do  say  that  the  said 

on  the  said  day  of  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  at  the  City  of  New  York,  in  the  Southern 

District  of  New  York  aforesaid,  and  within  the  jurisdiction  of  this  coiu't 
before  the  said  notary  public  [or  otlieriuise),  (he  the  said 

then  and  there  having  competent  power  and  authority  to  administer 
the  aforesaid  oath),  by  his  own  act  and  consent,  and  of  his  own  most 
wicked  and  corrupt  mind,  in  manner  and  form  aforesaid,  falsely  did 
swear  touching  the  expenditure  of  public  money  of  the  said  United 
States  of  America,  against,  &c.,  and  against,  etc.  [Conclude  as  in 
book  1,  chap.  3). 

[For  final,  count,  see  p.  17,  97  7i,  123  ??). 

At  custom  house,  in  swearing  to  an  entry  of  invoice,  intending  to  defraud 
the  United  States,  S^^c,  under  act  of  March  1st,  182U.(/) 

That  late,  &c.,  on,  &c.,  at,  &c.,  v/ishing  and  intending  to  enter 

by  invoice,  at  the  custom  house,  in  said  City  of  New  York,  certain 
goods,  wares  and  merchandise,  which  before  that  time  had  l)een 
brought  and  imported  in  a  certain  called   llie  whereof 

one  then  and  there  was  master,  from  a  foreign  port  or  place,  to 

wit,  from  the  port  of  in  the  {specif}/  the  place,  whether  king- 

dom or  otherivise),  and  which  were  subject  to  the  payment  of  duties 
to  the  United  States  of  America,  on  being  so  brought  and  imported. 

(Z)   U.  S.  r.  Frosnli,  United  Stiitcs  Circuit  Court,  New  Yuik.      Tlic   dcfciulaiit    in  tliis 
case  Ibrlijilcd  liia  rucognizancc. 


PERJURY.  285 

did  come  in  his  own  proper  person,  on,  &c.,  at,  &c.,  and  did  then  and 
there  produce  and  dehver  to  and  before  one  a  deputy  collector  of 

the  customs  of  the  Port  and  District  of  the  said  City  of  New  York,  duly 
appointed  according  to  law,  a  certain  entry,  purporting  to  be  an  entry 
oi'  the  merchandise  so  as  aforesaid  imported  by  the  said  from 

the  said  port  of  in  the  said  which  said  entry  so  produced 

and  delivered  as  aforesaid,  was  duly  signed  and  subscribed  by  him, 
the  said  in  his  own  proper  handwriting,  *  and  the  said 

then  and  there  was  sworn,  and  took  his  corporal  oath,  before  the  said 

in  due  form  of  law,  touching  and  concerning  the  matters  con- 
tained in  the  said  entry,  t  so  as  aforesaid  produced  and  delivered  by 
him   the   said  to   him  the   said  then  and  there  being  a 

deputy  collector  of  the  customs  as  aforesaid,  he  the  said  then 

and  there  having  sutiicient  and  competent  power  and  authority  to 
administer  the  said  oath  to  the  said  in  that  behalf,  which  said 

oath  so  taken  by  him  the  said  was  required  to  be  taken  by  him 

the  said  under  and  by  virtue  of  an  act  of  congress  of  the  United 

States  of  America,  approved  on  the  first  day  of  JNlarch,  in  the  year 
one  thousand  eight  hundred  and  twenty-three,  entitled  "an  act  sup- 
plementary to,  and  to  amend  an  act,  entitled  *an  act  to  regulate  the 
collection  of  duties  on  impo/ts  and  tonnage,'  passed  on  the  second  day 
of  March,  seventeen  hundred  and  ninety-nine,  and  for  other  pur- 
poses," in  a  matter  and  proceeding  at  the  custom  house,  at  the  said 
Port  and  District  of  the  City  of  New  York,  on  the  said  day  of 

aforesaid,  it  then  and  there  being  material,  that  a  just  and  true 
account  of  all  the  goods,  wares  and  merchandise,  so  as  aforesaid  im- 
ported by  him  the  said  should  be  furnished  to  the  otficers  of  the 
customs  in  that  behalf,  at  the  custom  house,  in  said  City  of  New 
York,  and  should  be  set  forth  in  said  entry,  so  as  aforesaid  produced 
and  delivered  by  the  said  to  the  said  tt,  and  it  being  then 
and  there  material,  that  the  said  officers  of  the  customs,  acting  in  that 
behalf,  should  know  and  be  informed,  whether  the  said  in  the 
said  entry  had  concealed  or  suppressed  any  thing,  whereby  the  United 
States  might  be  defrauded  of  any  part  of  the  duty  lawfully  due  on 
the  said  goods,  wares  and  merchandise.  And  the  jurors  aforesaid, 
on  their  oath  aforesaid,  do  further  say,  that  the  said  then  and 
there  being  so  sworn  as  aforesaid,  not  having  the  fear  of  God  before 
his  eyes,  and  being  moved  and  seduced  by  the  instigation  of  the 
devil,  being  so  sworn  as  aforesaid,  did  then  and  there,  upon  his  oath 
aforesaid,  touching  and  concerning  the  matters  contained  in  the  said 
entry,  knowingly  and  willingly  swear  falsely,  amongst  other  things, 
and  make  oath  in  writing  and  substance,  and  to  the  effect  following, 
that  is  to  say,  that  the  said  entry,  so  then  and  there  delivered  by  him 
to  the  collector  of  New  York  (meaning  thereby  the  entry,  so  as  afore- 
said produced  and  delivered  by  him  the  said  to  the  said  ), 
contained  a  just  and  true  account  of  all  the  goods,  wares  and  mer- 
chandise imported  by  or  consigned  to             in  the              called  the 

whereof  was  niaster,  from  (meaning  thereby  the 

goods,  wares  and  merchandise,  so  as  aforesaid  imported  by  him  the 
said  in  said  and  consigned  to  ),  and  th:it   he  the 

said  in  ;he  said  entry  or  invoice  l)ad  not  concealed  or  t.npj)ressed 


286  OFFENCES  AGAIXST  SOCIETY. 

any  tiling,  whereby  the  United  States  of  America  might  be  defraud- 
ed of  any  part  of  the  duty  lawfully  due  on  said  goods,  wares  and 
merchandise ;  whereas,  in  truth  and  in  fact,  the  said  entry  did  not 
contain  a  just  and  true  account  of  all  the  goods,  wares  and  merchan- 
dise imported  by  him  the  said  or  consigned  to  in  the  said 

called  the  whereof  said  was  then  and  there  mas- 

ter as  aforesaid,  but  on  the  contrary  thereof,  the  account  of  the  goods, 
wares  and  merchandise  contained  in  the  said  entry,  was  then  and 
there  false,  in  this,  that  in  and  by  the  said  entry,  the  said  goods, 
wares  and  merchandise  are  and  were  set  forth  and  represented  to 
liave  cost  the  importer  thereof,  including  charges,  the  sum  oi' {here 
insert  the  sum,  in  the  ciiri'cncy  of  the  country  from  whence  the 
goods  ivere  exported),  meaning  thereby  so  much  money  of  the  king- 
dom, {or  otherwise),  of  when  in  truth  and  in  fact,  the  said 
goods,  wares  and  merchandise  cost  the  importer  thereof,  including 
charges,  a  much  greater  and  larger  sum  and  price  than  the  ^aid  sum 
of  of  the  currency  aforesaid;  and  whereas  also,  in  truth  and  in 
fact,  he  the  said  in  the  said  entry,  bad  concealed  and  suppress- 
ed the  true  and  actual  cost  and  value  of  said  goods,  wares  and  mer- 
chandise, with  intent  thereby  to  defraud  the  said  United  States  of 
America  of  some  part  of  the  duly  lawfully  due  and  chargeable  on 
said  goods,  wares  and  merchandise,  and  whereby  the  said  United 
States  were  defrauded  of  a  large  part  of  the  duty  lawfully  charge- 
able on  said  goods,  wares  and  merchandise.  And  so  the  jurors,  &c., 
do  say,  that  the  said  did  on  the  said  day  of  in  the 
year,  &c.,  in  the  matter  and  proceeding  aforesaid,  at  the  custom  house 
in  the  said  City  of  New  York,  take  the  said  oath  before  the  said 

he  the  said  then  and  there  being  a  deputy  collector  of 

the  customs  as  aforesaid,  having  competent  authority  to  administer 
such  oath  to  the  said  as  aforesaid,  when  an  oath  was  required 

to  be  taken  under  and  by  a  law  of  the  United  States  of  America, ^nd 
under  and  by  virtue  of  the  revenue  laws  of  the  said  United  States, 
and  upon  the  taking  of  said  oath,  by  him  the  said  as  aforesaid, 

he  the  said  did  then  and  there  knowingly  and  willingly  swear 

falsely,  in  manner  and  form  aforesaid,  in  a  matter  and  proceeding 
when  the  aforesaid  oatli  was  required,  by  a  law  of  the  United  States 
of  America,  to  be  taken  by  the  said  and  was  then  and  there 

guilty  of  perjury,  against,  &c.,  and  against,  &c.  {Conclude  as  in 
hook  1,  chap.  3). 

Second  count.     Same  aft  first  doiim  to  *,  at  irhich  insert : 
and  that  the  said  did  also  then  and  there  at  the  time  of  pro- 

ducing and  delivering  the  said  entry  as  aforesaid,  produce  and  deliver 
to  the  said  being  then  and  there  a  dei)uty  collector  of  the  cus- 

toms as  aforesaid,  duly  appointed  according  to  law,  a  certain  invoice, 
purporting  to  be  an  invoice  of  the  goods,  warcS  and  n^erchandise  so 
as  aforesaid  imported  by  the  said  in  the  said  called  the 

from  the  said  port  of  and  included  in  the  entry  then  and 

there  as  aforesaid  produced  and  delivered  by  the  said  to  the 

•""■'id  and  the  said  was  then  and  there  in  due  manner 

sworn,  riiid  took  his  oath  before  the  said  in  due  form  of  law, 

loucluiig  and  concerning  the  matters  conlaiiied  in  the  said  eiiiry  and 


PERJURY.  287 

invoice,  t  [here  insert  as  much  of  first  count  as  intervenes  beiiveen 
t  rtn^  tt) ;  and  it  being  thejn  and  there  also  material,  that  a  just  and 
laitht'ul  account  of  the  actual  cost  of  the  said  goods,  wares  and  mer- 
chandise, of  all  charges  thereon,  including  charges  of  purchasing,  car- 
riages, bleaching,  dyeing,  dressing,  finishing,  putting  up  and  packing, 
and  no  other  discount,  drawback  or  bounty  but  such  as  had  been 
actually  allowed  on  the  same,  should  be  furnished  to  the  olhcers  of 
the  customs,  acting  in  that  behalf,  at  the  custom  house  in  the  said 
City  of  New  York,  and  set  forth  in  said  invoice,  so  as  aforesaid  pro- 
duced by  him  the  said  and  it  being  also  then  and  there  material, 
that  the  officers  of  the  customs  acting  in  that  behalf,  sliould  know  and 
be  informed,  whether  he  the  said  knew  or  beUeved  in  the 
existence  of  any  invoice  of  the  said  goods,  wares  and  merchandise, 
other  than  the  invoice  so  as  aforesaid  produced  and  delivered  by  him 
the  said  also  whether  or  not,  the  invoice  so  then  and  there  pro- 
duced and  deUvered  by  him  tiie  said  was  then  and  there  in  the 
state  in  which  he  the  said  had  actually  received  the  same,  and 
it  being  also  then  and  there  material,  that  the  said  officers  of  the  cus- 
toms acting  in  that  behalf,  should  then  and  there  know  and  be  in- 
formed, whether  or  not,  he, the  said  in  the  said  entry,  or  the 
said  invoice,  had  concealed  or  suppressed  any  thing,  whereby  the 
United  States  of  America  might  be  defrauded  of  any  part  of  the  duty 
lawfully  due  on  the  said  goods,  wares  and  merchandise;  and  that  the 
said  not  having  the  fear  of  God  before  his  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  then  and  being  so 
sworn  as  aforesaid,  did  upon  his  oath  touching  and  concerning  the 
matters  contained  in  the  said  entry  and  invoice,  knowingly  and  wil- 
lingly swear  falsely,  and  make  oath  in  writing,  in  substance  and  to 
the-  effect  following,  that  is  to  say,  that  the  entry  then  delivered  by 
him  to  the  collector  of  New  York  (meaning  thereby  the  entry  so  as 
aforesaid  produced  and  delivered  by  him  the  said  to  the  said 

),  contained  a  just  and  true  account  of  all  the  goods,  wares 
and  merchandise  imported  by  or  consigned  to  in  the 

called   the  whereof  was   then   and   there   master,  from 

(meaning  thereby  the  goods,  wares  and  merchandise,  sq  as 
aforesaid  imported  by  him  the  said  in  said  called  the 

and  consigned  to  and  that  the  said  invoice,  so  then  and 

there  as  aforesaid  produced  by  him  the  said  contained  a  just 

and  faithful  account  of  the  actual  cost  of  the  said  goods,  wares  and 
merchandise,  of  all  charges  thereon,  including  charges  of  purchasing, 
carriages,  bleaching,  dyeing,  dressing,  finishing,  putting  U|)  and  pack- 
ing, and  no  other  discount,  drawback  or  bounty  but  such  as  had 
been  actually  allowed  on  the  same,  and  also  that  he  the  said 
did  not  know  or  believe  in  the  existence  of  any  invoice,  other  than 
tiiat  so  as  aforesaid  then  and  there  produced  by  him,  the  said 
and  that  the  said  invoice,  so  then  and  there  produced  and  delivered, 
was  in  the  state  in  which  he  the  said  had  actually  received  the 

same,  and  also  that  he  the  said  had  not  in  the  said  entry  or  in- 

voice concealed  or  suppressed  any  thing,  whereby  the  United  States 
of  America  might  be  defrauded  of  any  part  of  the  duty  lawfully  due 
on  the  said  goods,  wares  and  merchandise);  whereas,  in  truth  and  in 


288  OFFENCES  AGAINST  SOCIETY. 

fact,  the  said  entry  so  as  aforesaid  then  and  tliere  produced  and 
delivered,  did  not  contain  a  just  and  true  account  of  all  the  goods, 
wares  and  merchandise  imported  by  him  the  said  or  consigned 

to  in  the  said  called  the  whereof  the  said  was 

then  and  there  the  master  as  aforesaid,  but  on  tiie  contrary  thereof,  the 
account  of  said  goods,  wares  and  merchandise  contained  in  the  said 
entry  was  then  and  there  false,  in  this,  that  in  and  by  the  said  entry, 
the  said  goods,  wares  and  merchandise  are,  and  were  set  forth  and 
represented  to  have  cost  the  importer  thereof,  including  commissions 
and  charges,  the  sum  of  {here  insert  the  sum,  in  the  currency  of  the 
country  from  whence  the  goods  were  exported),  meaning  thereby  so 
much  of  the  currency  of  the  kingdom  of  {or  otherwise),  when 

in  truth  and  in  fact,  the  said  goods,  wares  and  merchandise  cost  the 
importer  thereof,  including  commissions  and  charges,  a  much  larger 
sum  and  price  than  the  said  sum  of  of  the  currency  aforesaid, 

and  whereas  also,  in  truth  and  in  fact,  the  said  invoice,  so  then  and 
there  as  aforesaid  produced  to  the  said  did  not  contain  a  just 

and  faithful  account  of  the  actual  cost  of  the  said  goods,  wares  and 
merchandise,  of  all  charges  thereon,  including  charges  of  purchasing, 
carriages,  bleaching,  dyeing,  dressing,  finishing,  putting  up  and  pack- 
ing, and  no  other  discount,  drawback  or  bounty  but  such  as  had  been 
actually  allowed  on  the  same,  but  on  the  contrary  thereof,  the  account 
of  the  actual  cost  of  the  said  goods,  wares  and  merchandise,  of  all 
charges  thereon,  including  charges  of  purchasing,  carriages,  bleach- 
ing, dyeing,  dressing,  finishing,  putting  up  and  packing,  and  no  other 
discount,  drawback  or  bounty  but  such  as  had  been  actually  allowed 
on  the  same,  was  set  forth  and  represented  in  the  said  invoice,  to  be 
the  sum  of  (meaning  thereby  so  much  currency  of  the 

of  ),  when  in  truth  and  in  fact,  the  actnal  cost  of  the  said  goods, 

wares  and  merchandise,  and  of  all  charges  thereon,  including  charges 
of  purchasing,  carriages,  bleaching,  dyeing,  dressing,  finishing,  put- 
ting up  and  packing,  and  no  other  discount,  drawback  or  bounty  but 
such  as  had  been  actually  allowed  on  the  same,  was  a  different  and 
much  larger  sum  than  the  said  sum  of  of  the  currency  afore- 

said, so  contained  in  the  said  invoice.  And  whereas  also,  in  truth 
and  in  fact,  he  the  said  then  and  there  well  knew  and  believed 

in  the  existence  of  an  invoice  of  said  goods,  wares  and  merchandise, 
other  and  greatly  different  from  the  said  invoice  so  as  aforesaid  then 
and  there  produced  by  liim  the  said  in  which  said  other  invoice, 

the  said  goods,  wares  and  merchandise  were  set  forth  and  represent- 
ed to  have  cost  a  much  larger  sum  and  price  than  was  expressed  in 
the  said  invoice  so  as  aforesaid  then  and  there  produced  and  delivered 
by  him  the  said  to  tiie  said  and  whereas  also,  in  truth 

and  in  fact,  the  said  invoice  so  tiien  and  there  produced  as  aforesaid, 
was  not  then  and  there  in  the  state  in  which  the  same  had  been 
actually  received  by  him  the  said  but  on  the  contrary  thereof, 

the  said  invoice  so  then  and  there  produced  as  aforesaid,  had,  after 
the  receipt  of  the  paper  on  which  the  said  invoice  was  written,  been 
greatly  and  materially  altered  and  written   upon   by  him   the   said 
and  whereas  also,  in  truth  and  in  fact,  he  the  said  in  the 

said  entry  and  invoice,  had  concealed  and  suppressed  the  true  and 


PERJURY.  289 

actual  cost  and  value  of  the  said  goods,  wares  and  merchandise,  with 
intent  thereby  to  defraud  the  United  States  of  America,  of  some  part 
of  tlie  duties  lawfully  due  on  tlie  said  goods,  wares  and  merchandise. 
And  so  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  say,  that  the 
said  on  the  said  day  of  in   the  year,  &c.,  before 

a  deputy  collector  of  the  customs,  at  the  said  Port  and  District 
of  the  City  of  New  York,  duly  appointed  according  to  law,  he  the 
said  having  as  aforesaid  competent  power  and  authority  to 

administer  said  oath  to  the  said  did  upon  taking  the  said  oath  in 

a  matter  and  proceeding  at  the  custom  house,  in  the  said  City  of  New 
York,  when  an  oath  was  required  to  be  taken  under  and  by  virtue  of  a 
law  of  the  United  States  o'f  America,  knowingly  and  willinsly  swear 
falsely,  in  manner  and  form  last  aforesaid,  and  did  then  and  there  com- 
mit wilful  and  corrupt  perjury,  against,  &c.,  and  against,  &c.  {Con- 
clude as  ill  book  1,  chap.  3). 

Last  count. 

And  the  jurors'  afojresaid,  on  their  oath  aforesaid,  do  further  pre- 
sent, that  the  Southern  District  of  NewTork  in  the  Second  Circuit,  is 
the  district  and  circuit  in  whicli  the  said  offences  were  committed, 
and  in  which  the  said  was  first  apprehended  for  the  said  of- 

fences (or  as  the  case  may  he;  see  ante, p.  17,  97  n,  123  n). 

^    In  justifying  to  hail  for  a  party  after  indictment  found,  ^-ciin) 

That  heretofore,  to  wit,  on,  &c.,  one  (the  person  bailed),  was  duly 
committed  for  trial  to  a  prison  in  the  City  of  in  the  Southern 

District  of  New  York  aforesaid,  for  a  certain  felony  {or  otherwise), 
by  him  the  said  before  that  time  alleged  to  have  been  commit- 

ted against  the  said  United  States. 

And  the  jurors  aforesaid  on  their  oath  aforesaid,  do  further  present, 
that  at  an  additional  session,  {or  otherwise),  of  the  District  Court  of 
the  United  States  of  America,  for  the  Southern  District  of  New  York, 
begun  and  held  at  the  City  of  New  York,  within  and  for  the  district 
aforesaid,  on,  &c.,  the  grand  inquest  of  the  United  States  of  America, 
within  and  for  the  district  aforesaid,  found  a  true  bill  of  indictment 
against  the  said  (the  first  mentioned  party),  for  having,  on,  &:c.,  {state 
particularly  the  offence  or  offences). 

And  the  jurors  aforesaid  on  their  oath  aforesaid  do  further  present, 
that  the  said  was  duly  arraigned  before  the  said  district  court, 

and  that  he  pleaded  not  guilty  to  the  said  bill  of  indictment  so  found 
as  aforesaid. 

And  the  jurors  aforesaid  on  their  oath  aforesaid,  do  further  present, 
that  on  application  of  the  said  the  said  district  court  did  there- 

upon order  the  said  to  find  sufficient  bail  in  the  sum  of 

dollars,  with  or  more  sureties  for  his  appearance  in  the  said 

district  court  to  answer  to  the  said  indictment,  and  that  in  default  of 
finding  such  bail  the  said  should  stand  committed  for  trial  upon 

said  indictment. 

And  the  jurors  aforesaid  on  their  oath  aforesaid  do  farther  present, 

(m)  This  form,  in  which  the  offence  is  stated  in  the  several  counts,  was  prepared  in  the 
office  of  Mr.  Butler,  United  States  District  Attorney  for  New  York. 
25 


290  OFrExcES  against  society. 

that  after  the  making  of  the  order  last  aforesaid,  the  said  district  court 
was  adjourned  until  the  of  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  then  to  be  holden  at  the  said  City 

of  New  York,  in  and  for  the  said  Southern  District  of  New  York, 

And  the  jurors  aforesaid  on  their  oath  aforesaid  do  further  present, 
that  after  tlie  adjournment  of  the  said  district  court  as  last  aforesaid, 
one  of  the  in  the  district  aforesaid,  on,  &c.,  came 

before  ,  and  then  and  tliere  offered  himself  to  be  and  become 

one  of  the  bail  for  the  said  ,  (he  the  said  (the  commis- 

sioner), then  and  there  being  one  of  the  commissioners  duly  appointed 
by  the  Circuit  Court  of  the  United  States  of  America  for  the  Southern 
District  of  New  York,  to  take  acknowledgments  of  bail  and  affidavits, 
and  also  to  take  depositions  of  witnesses  \n  civil  causes  depending  in 
the  courts  of  the  United  States  pursuant  to  the  provisions  of  the  act 
of  congress  in  that  behalf),  that  he  the  said  should  personally 

appear  in  the  said  District  Court  of  the  United  States  on  the  said 
of  in  the  year  of  our  Lord,  one  thousand  eight  hundred  and 

at  o'clock  in  the  forenoon  of  that  day,  then  and  there 

to  answer  all  such  matters  and  things  as  should  be  objected  against 
him  the  said  and  not  depart  the  said  court  without  leave, and 

thereupon  the  said  >-  was  then  and  there  at  the  said  City  of  New 
York,  on  the  said  day  of  in  due  manner  sworn  by  the 

said  ,t  and  did  make  affidavit  in  writing,  and  take  his  corporal 

oath  upon  the  holy  gospel  of  God,  before  the  said  (the  com- 

missioner) touching  and  concerning  the  matters  contained  in  his  said 
artldavit  (he  the  said  then  and  tliere  having  sufficient  and  com- 

petent authority  to  administer  an  oath  to  the  said  on  that  be- 

half); and  the  said  being  so  sworn  as  aforesaid,  then  and  there, 

on,  &c.,  at,  &c.,  to  prevent  the  said  from  knowing  the  true  cir- 

cumstances and  property  of  him  the  said  did,  upon  his  corpo- 

lal  oath  concerning  the  matters  contained  in  the  said  aflidavit,  in  writ- 
ing, before  the  said  (he  the  said  then  and  there  having 
sufficient  and  competent  authority  to  administer  an  oath  to  the  said 
on  that  behalf),  then  and  there  wilfully,  corruptly  and  know- 
ingly by  his  own  act  and  consent  commit  perjury  upon  his  oath  afore- 
said, in  swearing  to  the  said  affidavit  in  writing  (amongst  other  things) 
in  substance  and  to  the  effect  following,  that  is  to  say,  that  he  the  said 
(at  the  time  of  taking  the  said  oath  and  making  the  said  affi- 
davit in  writing  meaning),  was  worth  the  sum  of  dollars,  over 
and  above  all  his  the  said             just  debts  and  liabilities.     Whereas 
in  truth  and  in  iact  at  the  time  of  taking  the  said  oath  and  making  the 
said  affidavit  in  writing,  he  the  said             was  not  worth  the  sum  of 
dollars  over  and  above  all  his  the  said              just  debts  and 
liabilities. 

And  the  jurors  aforesaid  on  their  oath  aforesaid  do  further  present, 
that  it  then  and  there  became  necessary  and  material  that  tlic  said 
(the  commissioner)  should  know  whether  the  said  was, 

at  the  time  of  taking  the  said  oath  and  making  the  said  affidavit  in 
writing,  worth  the  sum  of  dollars,  over  and  above  all  his  the 

said  just  debts  and  liabilities. 

And  so  the  jurors  aforesaid  on  their  oath  aforesaid  do  say,  that  the 


PKRJUKV.  2*J1 

said  on,  &c.,  before  the  said  ,  (he  the  said  then  and 

there  having  such  sufficient  and  competent  authority  as  aforesaid),  tt 
upon  his  oath  aforesaid,  by  his  own  act  and  consent,  and  of  his  own 
most  wicked  and  corrupt  mind,  in  a  matter  depending  in  the  said  Dis- 
trict Court  of  the  United  States,  did  wilfully  and  corruptly  commit 
perjury,  against,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Second  count. 

That  the  said  heretofore,  on,  &c.,  at,  &c.,  came  before 

(the  commissioner),  and  then  and  there  offered  himself  to  be  and  be- 
come one  of  the  bail  for  one  ,  he  the  said  then  and  there 
being  in  prison  in  in  the  Southern  District  of  New  York  afore- 
said, charged  with  a  crime  before  that  time  committed  against  tlui 
United  States  of  America,  by  him  the  said.  (the  party  bailed), 
in  {state  the  offence  or  offences  with  which  he  stood  charged),  he  tlie 
said  (the  commissioner),  then  and  there  having  competent  au- 
thority from  the  said  Circuit  Court  of  the  United  States,  to  take  bail 
in  that  behalf),  that  the  said  (the  party  bailed)  should  person- 
ally appear  in  the  said  District  Court  of  the  United  States,  on,  &c., 
at  o'clock  in  the  forenoon  of  that  day,  and  then  and  there  an- 
swer all  such  matters  and  things  as  should  be  objected  against  hini 
the  said  and  not  depart  the  said  court  without  leave,  and  there- 
upon the  said  (the  bail)  was  then  and  there  on  the  said 
day  of  at  the  said  City  of  New  York,  in  due  manner  swoni 
by  the  said  *  to  make  true  answer  to  all  such  questions  as 
should  be  demanded  of  him  the  said  touching  the  sufficiency  as 
bail  for  the  said  (he  the  said  having  then  and  there  suf- 
ficient and  competent  authority  to  administer  such  oath  to  the  said       ). 

And  the  jurors  aforesaid  on  their  oath  aforesaid  do  further  present, 
that  the  said  so  being  sworn  as  aforesaid,  then  and  there,  to 

wit,  on,  &c.,  at,  &c.,  before  the  said  was  interrogated  concern- 

ing the  circumstances  and  property  of  him  the  said  and  there- 

upon lie  the  said  not  having  the  fear  of  God  before  his  eyes, 

&c.,  and  to  prevent  the  said  from  knowing  tlie  true  circum- 

stances and  property  of  him  the  said  on  the  said,  &c.,  at,  &c., 

wilfully,  corruptly,  knowingly  and  willingly,  by  his  own  act  and  con- 
sent upon  his  corporal  oath,  did  swear  falsely  and  make  affidavit  in 
writing  before  the  said  (he  the  said  then  and  there  having 

sufficient  and  competent  authority  to  administer  such  oath  to  the  said 
)  in  a  proceeding  where  an  oath  was  required  to  be  taken  by 
him  the  said  under  the  laws  of  the  United   States  (amongst 

other  things),  in  substance  and  to  the  effect  following,  that  is  to  say, 
that  he  the  said  (at  the  time  of  taking  the  said  oath  and  making 

the  said  alhdavit  meaning),  was  worth  the  sum  of  dollars,  over 

and  above  all  his  (the  said  meaning)  just  debts  and  liabilities  ; 

whereas  in  truth  and  in  fact,  at  the  time  of  taking  the  said  oath  ami 
making  the  said  affidavit  in  writing,  he  the  said  was  not  worth 

the  sum  of  dollars  over  and  above  all  his  (the  said  mean- 

ing) just  debts  and  liabilities. 

And  the  jurors  aforesaid  on  their  oath  aforesaid  do  further  present, 
that  it  then  and  there  became  necessary  and  material  tiiat  the  said 


292  OFFEXCES  AGAINST  SOCIETV. 

should  know  whether  the  said  was,  at  the  time  of  taking 

the  said  oath  and  nnaking  the  said  affidavit  in  writing,  worth  the  sum 
of  dollars  over  and  above  all  his  the  said  just  debts  and 

liabilities. 

And  so  the  jurors  aforesaid  on  their  oath  aforesaid  do  say,  that  the 
said  on,  &c.,  at,  &c.,  before  the  said  (he  the  said 

then  and  there  having  sufficient  and  competent  authority  to  administer 
such  oath  to  the  said  ),  upon  his  oath  aforesaid,  wilfully,  cor- 

ruptly, knowingly  and  willingly  did  make  affidavit  in  writing  and 
swear  falsely  in  regard  to  material  facts  in  a  proceeding  before  the 
said  ,  wherein  an  oath  was  required  to  be  taken  by  him  the 

said  under  the  laws  of  the  United  States,  and  did  commit  wil- 

ful and  corrupt  perjury,  against,  &c.    {Conclude  us  in  book  \,chap.  3). 

Third  count.  Same  as  second  count  down  to  *,  then  jn-oceed  to  intro- 
duce so  7nuch  of  first  count, as  is  contained  betircen  f  and-\-\,  and  conclude  : 
upon  his  oath  aforesaid  knowingly  and  willingly  did  make  affidavit 
in  writing,  and  swear  falsely  in  regard  to  material  facts  in  a  pro- 
ceeding before  the  said  ,  where  an  oath  was  required  to  be  taken 
by  liiin  the  said  under  the  laws  of  the  United  States,  and  did 
commit  wilful  and  corrupt  perjury,  against,  &.C.,  and  against,  &c. 
(Conclude  as  in  book  \,chap.  3). 

Fourth  count. 

That  the  said  wickedly  and  corruptly  intending  to  prevent 

the  due  course  of  justice,  on,  &c.,  at,  &c.,  in  his  own  proper  person 
came  before  a  Commissioner  of  the  Circuit  and  District  Courts 

of  the  United  States  of  America,  for  the  Southern  District  of  New 
York,  duly  appointed  according  to  law,  and  having  competent  power 
and  authority  to  administer  oaths  and  take  the  recognizances  of  bail 
in  criminal  cases  pending  in  the  said  courts,  except  in  cases  where  the 
punishment  is  death,  and  then  and  there  before  the  said  offered 

to  be  and  becomte  one  of  the  bail  for  the  appearance  in  the  said  dis- 
trict court  of  one  against  whom  an  indictment  for  {state  the 
offence  for  which  he  stood  chavi^ed),  was  then  and  there  pending  in 
tlie  said  District  Court  of  the  United  Slates,  on  which  said  indictment 
lie  tlie  said  stood  connnittcd  and  charged,  and  upon  which  said 
indictment  the  said  district  court  had  before  the  said  day  of,  &c., 
made  an  order  that  the  said  might  be  admitted  to  bail  in  the 
sum  of  dollars,  with  or  more  sureties ;  and  so  being  there 
on  the  said  day  of  in  the  year  last  aforesaid,  before-  the 
said  commissioner  as  aforesaid,  and  oti'ering  to  be  and  become 
one  of  the  bail  of  the  said  ,  it  was,  and  became  then  and  there 
material  that  the  said  conunissioner  as  aforesaitl,  should  know 
and  be  informed  vyhether  he  the  said  was  worth  the  sum  of 
dollars,  over  and  above  all  his  just  debts  and  liabilites,  and 
that  thereupon,  then  and  there,  he  the  said  was  in  due  manner 
sXvorn,  and  did  take  his  corporal  oath  on  (he  holy  gospel  of  God,  be- 
fore the  said  (he  the  said  then  and  there  having  a  com- 
petent authority  to  administer  an  oath  to  said  in  that  bc- 
hall),  touching  liis  sufficiency  as  one  of  the  bail  of  said  , 
and  being  so  sworn,  he  the  said  not  having  the  fear  of  (Jod  be- 
fore his  eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 


PERJURY. 


293 


devil,  did  wilfully,  corruptly  and  falsely  swear  and  make  his  **  atFi- 
davit  in  writing  (amongst  other  things),  in  substance  and  to  the  elTuci 
lollowiiig,  that  is  to  say,  that  he  (the  tiuid  meaning),  was  woiih 

the  sum  of  dollars,  over  and  above  all  his  the  said  just 

debts  and  liabilities,  whereas  in  truth  and  in  tact,  lie  the  said 
at  the  tiine  lie  so  swore  and  made  the  said  allidavit,  was  not  worth 
the  sum  of  dollars,  over  and  above  his  the  said  just  debts 

and  liabilities,  and  whereas  in  truth  and  in  fact,  he  the  said  at 

the  time  he  so  swore  and  made  tiie  said  affidavit,  was  not  worth  any 
sum  of  money  whatever  (or  as  the  case  may  he),  over  and  above  Ins 
just  debts  and  liabilities. 

And  so  the  jurors  aforesaid,  on  their  oath  aforesaid  do  say,  that  the 
said,  &c.     [Conclude  as  before). 

Fifth  count.  Same  as  fourth  count  doivn  to  **^  and  tlien  proceed: 
t  deposition  in  writing  pursuant  to  the  laws  of  the  United  States  of 
America  (amongst  other  things),  in  substance  and  to  the  effect  follow- 
ing, that  is  to  say,  that  he  (the  said  meaning)  was  worth  the 
sum  of  dollars,  over  and  above  all  his  (the  said  meaning) 
just  debts  and  liabilities,  whereas  in  truth  and  in  fact,  he  the  said 
at  the  time  he  so  swore  and  made  the  said  deposition  in  writing,  was 
not  worth  the  sum  of  dollars,  over  and  above  all  his  the  said 
just  debts  and  liabilities,  and  whereas  in  truth  and  in  fact,  he 
the  said  at  the  time  he  so  swore  and  made  his  said  deposition 
in  writing,  was  not  worth  any  sum  of  money  whatever  [if  such  is  the 
case),  over  and  above  his  just  debts  and  liabilities. 

And  the  jurors  aforesaid  on  their  oath  al'oresaid,  do  say,  that,  &c., 
on,  &c.,    before  the  said  ,  so   as  aforesaid    having  a   com- 

petent authority  to  administer  the  said  oath  to  the  said  did 

wilfully  and  corruptly  commit  perjury  in  manner  and  form  last  afore- 
said, against,  &c.,  and  against,  &c.  [Conclude  as  in  book  \,chap.  3). 

And  the  jurors  aforesaid  on  ttieir  oath  aforesaid,  do  further  present, 
that  the  Southern  District  of  New  York  is  the  district  in  which  the 
said  offence  was  committed,  and  in  which  the  said  was  first  ap- 

prehended for  the  said  offence,  [see p.  17,  97  n,  123  n). 

In  giving  evidence  on  the  tried  of  an  issue  on  an  indictment  for  per- 
jury.{n) 

That  at  the  Supreme  Judicial  Court  of  the  said  commonwealth,  be- 
gun and  holden  at  B.,  whhin  and  for  the  County  of  S.,  on  the  first 
Tuesday  of  November,  on,  &c.,  before  I.  P.,  Esq.,  then  chief  justice 
of  the  said  court,  a  certain  issue,  in  due  manner  joined  in  the  said 
court,  between  the  commonwealth  aforesaid  and  one  C.  D.,  upon  a 
certain  indictment  then  depending  against  the  said  C.  D.  for  wilful 
and  corrupt  perjury,  came  on  to  be  tried,  and  was  tiien  and  there,  in 
due  form  of  law,  tried  by  a  certain  jury  of  the  country,  in  due  manner 
returned,  empanneled  and  sworn  for  that  purpose;  and  that  at  and 
upon  the  trial  of  said  issue,  E.  F.,  late  of  B.,  in  the  county  aforesaid, 
labourer,  did  then  and  there  appear,  and  was  produced  as  a  witness 

(n)  Altered  by  Mr.  Davis,  Precedents  210,  from  2  Cliit.  C.  L.  453,  453,  note  n.;  4  Went. 
275,  and  6  Went.  31)6. 

25* 


294  OFFENCES  AGAINST  SOCIETY. 

for  and  on  behalf  of  the  said  commonwealth,  and  against  the  said  C, 
D.,  upon  the  trial  of  the  said  issue,  and  the  said  E.  F.  was  then  and 
there  duly  sworn,  as  such  witness  as  aforesaid,  before  the  said  I.  P., 
Esq.,  then  chief  justice  as  aforesaid,  that  the  evidence  which  he  should 
giv^e  to  the  court  pnd  jury,  between  the  said  commonwealth  and  the 
said  C.  D.,  the  defendant,  on  the  issue  then  depending,  should  be  the 
truth,  the  whole  truth  and  nothing  but  the  truth  (the  said  I.  P.,  Esq., 
as  the  said  chief  justice  f)f  said  court,  then  and  there  having  sutiicient 
and  competent  power  and  authority  to  administer  the  said  oath  to  the 
said  E.  F.  in  that  behalf);  and  tlie  said  E.  F.,  being  so  sworn  as 
aforesaid,  it  then  and  there,  upon  the  trial  of  the  said  issiie,  became 
and  was  a  material  inquiry,  whether  [here  state  the  several  material 
questions).  And  the  jurors  albiesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  E.  F.,  maliciously  and  corruptly  intend- 
ing to  injure  and  aggrieve  tlie  said  C.  D.,  and  to  cause  and  procure 
him  to  be  convicted  of  the  wilful  and  corrupt  perjury  whereof  he 
tlien  stood  indicted  as  aforesaid,  and  to  subject  him  to  the  pains, 
penalties  and  punishments  of  the  laws  of  this  commonwealth  inflicted 
on  persons  convicted  of  that  crime,  and  being  then  and  there  lawfully 
required  to  depose  the  truth  in  a  proceeding  in  a  course  of  justice, 
then  and  there,  on  the  trial  aforesaid  of  the  said  issue,  upon  iiis  oath 
aforesaid,  before  the  said  I.  P.,  Esq.,  chief  justice  as  aforesaid,  having 
such  competent  authority  to  administer  such  oath  as  aforesaid,  false- 
ly, wickedly,  knowingly,  wilfully  and  corruptly  did  say,  depose,  swear 
and  give  evidence,  to  the  said  court  and  jury,  amongst  other  things, 
in  substance  and  to  the  eifect  following,  that  is  to  say,  {here  set  out 
the  evide7ice)\  whereas,  in  truth  and  in  fact,  the  said  C.  D.  did  not 
[here  assign  the  perjin^y,  by  negativing  the  false  evidence  given  by 
the  witness).  And  so  the  jurors  aforesaid,  upon  their  oath  albresaid, 
do  say,  that  the  said  E,  F.  falsely,  wickedly,  wilfully  and  corruptly, 
by  his  own  voluntary  act  and  consent,  and  of  his  own  wicked  mind 
and  disposition,  did  then  and  there,  in  manner  and  form  aforesaid, 
conunit  wilful  and  corrupt  perjury;  against,  &c.,  and  contrary,  &c. 
{Conclude  as  in  book  1,  cliaj).  3). 

On  a  trial  in  the  Supreme  Judicial  Court  of  Massachusetts,  on  a  civil 
acliun.{o) 

That  heretofore,  to  wit,  at  the  Supreme  Judicial  Court,  begun  and 
holden  at  B.,  within  and  for  the  said  County  of  S.,  on,  &c.,  before  I. 
P.,  then  being  chief  justice  of  the  same  court,  a  certain  issue  duly 
joined  in  the  said  court,  between  one  C.  D.  and  one  E.  F.,  in  a  cer- 
tain plea  of  trespass,  came  on  to  be  tried  in  due  form  of  law,  and  was 
then  and  there  tried  by  a  certain  jury  of  the  country,  duly  summoned, 
enipamieled  and  sworn  between  the  parties  aforesaid  ;  and  that,  upon 
the  said  trial,  G.  H.  of  said  li.,  yeoman,  appeared  as  a  witness  on  the 
behalf  of  the  said  E.  F.,  the  delendant,  and  was  duly  sworn,  and  took 
his  oath  before  the  said  I.  P.,  chief  justice  as  aforesaid,  to  speak  the 
irutli,  the  whole  truth,  and  nothing  but  the  truth,  touching  the  mat- 
Co)  Davis'  Prcc,  211. 


PEHJURY.  295 

fers  in  issue  on  the  said  trial;  lie  the  said  I.  P.,chief  jn>;tice  as  afore- 
said, having  sutticient  and  competent  power  and  auliiority  to  adini- 
nister  the  said  oatli  to  the  said  G.  H.  in  that  behalf;  and  that  at  and 
iij)oii  the  said  trial,  certain  questions  became  and  were  material,  in 
snbstance  as  follows,  that  is  to  say,  (/tere  state  the  material  ques- 
tions), and  that  the  said  E.  F.,  being  so  sworn  as  aforesaid,  and  being 
then  and  there  lawfully  required  to  depose  the  truth  in  a  [)roceeding 
in  a  course  of  justice,  at  and  upon  the  said  trial  at  the  court  aforesaid, 
tlien  and  there  falsely,  wilfully,  voluntarily  and  corruptly  did  say, 
depose  and  swear,  among  other  things,  in  substance  and  to  the  effect 
following,  that  is  to  say,  [here  state  the  evidence  luith  proper  inna- 
endoes);  whereas,  in  truth  and  in  fact,  [here  assign  the  perjury  by 
negativing  the  evidence).  And  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  G.  H.  in  manner  and  form  afore- 
said, did  commit  wilful  and  corrupt  perjury;  against,  &c.,  and  con- 
trary, &c.     {^Conclude  as  in  book  1,  chap.  3). 

Against  an  insolvent  in  JVew  York,  for  a  false  return  of  his  creditors  and 
estate.{p) 

That  heretofore,  to  wit,  on,  &c.,  at,  &c.,  one  E,  W.,  late,  &c., 
labourer,  presented  to  the  honourable  R.  R.,  then  being  the  Recorder 
of  the  City  of  New  York,  and  authorized  to  receive  petitions  under 
an  act  of  the  legislature  of  the  State  of  New  York,  entitled  "  an  act  to 
abolish  imprisonment  for  debt  in  certain  cases,"  passed  April  seventh, 
one  thousand  eight  hundred  and  nineteen,  and  the  several  acts  rela- 
tive to  insolvent  debtors  therein  referred  to,  a  certain  petition  of  him 
the  said  E.  W.,  (as  well  in  his  individual  capacity,  as  in  his  capacity 
as  the  partner  of  one  A.  B.  P.),  therein  represented  as  being  actually- 
then  an  inhabitant  within  the  said  city,  setting  forth  and  showing 
among  other  things,  that  from  many  unfortunate  circumstances,  he 
the  said  E.  W.  had  become  insolvent  and  utterly  incompetent  to  the 
payment  of  his  debts,  and  praying  therefore  that  his  estate  might  be 
assigned  for  the  benefit  of- all  his  creditors,  to  be  distributed  among 
them  in  discharge  of  the  debts  of  said  petitioner  so  far  as  the  same 
would  extend,  and  that  the  person  of  said  petitioner  might  be  forever 
thereafter  exempted  from  all  arrest  or  imprisonment  for  or  by  reason 
of  any  debtor  debts  due  at  the  time  of  making  said  assignment,  or 
contracted  for  before  that  time,  though  payable  afterwards,  and  also, 
if  in  prison,  from  his  imprisonment  agreeably  to  an  act,  entitled  "an 
act  to  abolish  imprisonment  for  debtin  certain  cases,"  (meaning  the 
said  act  of  the  legislature  of  tlie  State  of  New  York),  so  passed  as 
aforesaid. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  say, 
that  the  said  E.  W.,  on  the  said,  &c.,  at  the  place  aforesaid,  pursuant 
to  the  directions  of  said  last  mentioned  act,  upon  presenting  his  peti- 
tion as  aforesaid,  to  the  said  R.  R.  as  aforesaid,  delivered  to  the  said 
R.  R.  certain  papers,  purporting  t'o  be  a  full  and  true  account  of  all 

( p)  This  indictment  was  sustained  by  the  Supreme  Court  of  New  York,  in  People  v. 
Warner,  5  Wuud.  '2~il.    As  to  the  reasoning  of  the  court,  see  ante,  p.  2dl. 


206  OFFENCES  AGAINST  SOCIETY. 

the  creditors  of  said  E.  W.  (as  well  in  his  individual  capacity  as  in 
the  capacity  of  a  partner  of  A.  E.  P.),  therein  represented  to  be  an 
insolvent  debtor,  and  tlie  money  them  (meaning  tlie  money  owing  to 
them),  respectively  by  the  said  alleged  insolvent,  the  place  of  resi- 
dence of  each  of  his  creditors  to  the  best  of  his  knowledge,  informa- 
tion and  belief,  and  the  original  and  bo7ia  fide  consideration  of  his 
debts,  and  also  a  full  and  just  inventory  of  all  the  estate,  both  real  and 
personal,  in  law  and  equity  of  him  the  said  E.  W.  represented  as  last 
aforesaid,  and  of  all  the  books,  vouchers  and  securities  (meaning  of 
all  the  books,  vouchers  and  securities  relating  to  the  same),  as  well  in 
his  individual  capacity  as  in  the  capacity  of  the  partner  of  A.  B.  P., 
and  a  list  of  debts  due  him  the  said  alleged  insolvent,  as  well  in  his 
individual  capacity  as  in  the  capacity  of  the  partner  of  A.  B..  P. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  say, 
that  the  said  E.  W,,  &c.,  labourer,  on,  &c.,  at,  &c.,  unlawfully,  wick- 
edly and  maliciously  intending  and  contriving  to  injure  and  aggrieve 
one  J.  H.  and  sundry  other  creditors  of  him  the  said  E.  W,,  and  of 
him  the  said  E.  W,  and  said  A.  B.  P.,  fraudulently  and  wrongfully 
and  unlawfully  to  obtain  the  benefit  of  said  act  of  the  legislature  of 
the  State  of  New  York,  so  passed  April  seventh,  one  thousand  eight 
hundred  and  nineteen,  upon  presenting  said  petition  as  aforesaid  to 
the  said  R.  R.,  recorder  as  aforesaid,  did  then  and  there  pursuant  to 
the  directions  of  the  said  last  mentioned  act,  produce  and  exhibit  to, 
and  before  the  said  R,  R.,  recorder  as  aforesaid,  a  certain  oath  and 
affidavit  in  writing  of  him  the  said  E.  W.,  and  then  and  there  before 
the  said  R.  R.,  was  duly  sworn,  and  took  his  corporal  oath  concern- 
ing the  truth  of  the  matters  contained  in  the  said  oath  and  affidavit, 
(he  the  said  R.  R.,  recorder  as  aforesaid,  then  and  there  by  virtue  of 
the  said  last  mentioned  act,  having  a  lawful  and  competent  power 
and  authority  to  administer  the  said  oath  to,  and  to  take  and  receive 
the  said  alfidavit  of  him  the  said  E.  W.  in  that  behalf),  and  that  the 
said  E.  W.  being  so  sworn  as  aforesaid,  not  having  the  fear  of  God 
before  his  eyes,  but  being  moved  and  seduced  by  the  instigation  of 
the  devil,  and  not  regarding  the  said  acts  of  the  legislature  aforesaid, 
but  fraudulently  and  wickedly  and  corruptly  devising  to  sup{)ress  and 
avoid  a  full  and  true  disclosure  of  his  estate  and  effects  and  to  sub- 
vert the  truth  itself,  did  then  and  there,  to  wit,  on  the  said,  &c.,  at, 
&c.,  in  and  by  his  said  oath  and  affidavit,  upon  his  oath  aforesaid, 
before  the  said  R.  R.,  so  being  such  recorder  as  aforesaid  (he  the  said 
R,  R.  having  by  virtue  of  said  acts  aforesaid,  a  lawful  and  competent 
power  and  authority  to  administer  said  oath  to,  and  to  take  and  re- 
ceive said  affidavit  of  the  said  E.  W,  in  that  behalf),  falsely,  corruptly, 
knowingly,  wilfully,  maliciously  and  wickedly  did  say,  depose  and 
swear  (among  other  things),  in  substance  and  to  the  elfect  following, 
to  wit,  I,  E.  W.,  do  swear  that  the  account  of  my  creditors  (meaning 
the  creditors  of  the  said  E.  W.),  and  the  place  of  their  residence 
(meaning  the  place  of  the  residence  of  his  the  said  E.  W.'s  creditors), 
and  the  inventory  of  my  estate  (meaning  the  inventory  of  the  estate 
of  him  the  said  E.  W.),  together  with  the  evidences  of  my  title  there- 
to (meaning  the  evidences  of  his  the  said  E.  W.'s  title  thereto),  which 
are  both  herewith  delivered  (meaning  the  said  papers  so  purporting 


PERJURY.  297 

as  aforesaid,  and  together  with  the  said  petition  and  affidavit  so  deh- 
vered  as  aforesaid  to  the  said  R.  R.,  being  such  recorder  as  aforesaid 
and  in  the  said  affidavit  relerred  to),  are  in  all  respects  just  and  trut^, 
and  tliat  I  (meaning  the  said  E.  W.),  have  not  at  any  time  or  manner 
whatsoever,  disposed  of  or  made  over  any  part  of  my  estate  (mean- 
ing the  estate  of  the  said  E.  VV,),  for  the  future  bene^fit  of  myself 
(meaning  the  said  E.  W.),  or  my  family  (of  the  said  E.  W.),  or  in 
order  to  defraud  any  of  my  creditors  (meaning  the  creditors  of  the 
said  E.  W.),  or  settled  with  any  of  my  creditors  (uieaning  the. credi- 
tors of  the  said  E.  W.),  with  a  view  to  obtain  tlio  benefit  of  an  act, 
entitled  "  an  act  to  abolish  imprisonment  for  debt  in  certain  cases" 
(meaning  the  said  acts  of  the  legislature  of  the  State  of  New  York,  so 
passed  April  seventh,  one  thousand  eight  himdred  and  nineteen),  as 
by  the  said  oath  and  affidavit  and  petition,  with  the  papers  so  pur- 
porting as  aforesaid  thereto  annexed,  and  in  the  said  affidavit  referred 
to,  filed  in  the  office  of  said  R.  R.,  recorder  as  aforesaid,  at  the  City 
Hall  of  the  City  of  New  Yark,  in  the  Sixth  Ward  of  the  City  of 
New  York  aforesaid,  in  the  County  of  New  York  aforesaid,  more 
fully  appears. 

Whereas,  in  truth  and  in  fact,  the  said  papers  so  purporting  as 
aforesaid,  to  be  a  full  and  true  account  of  all  the  creditors  of  the  said 
E.  W.,  (as  well  in  his  individual  capacity  as  in  the  capacity  of  a  part- 
ner of  A.  B.  P.),  represented  to  be  an  insolvent  debtor,  and  the 
money  them  (meaning  the  money  owing  to  them),  respectively  by  the 
said  alleged  insolvent,  the  place  of  residence  of  each  of  iiis  creditors, 
to  the  best  of  his  knowledge,  information  and  belief,  and  the  original 
and  bona  fide  consideration  of  his  debts,  and  also  a  full  and  just  in- 
ventory of  all  the  estate,  both  real  and  personal,  in  law  and  equity  of 
the  ^aid  E.  W,,  represented  to  be  an  insolvent  debtor,  and  of  all  the 
books,  vouchers  and  securities  (meaning  of  all  the  books,  vouchers 
and  securities  relating  to  the  same),  as  well  in  his  individual  capacity 
as  in  the  capacity  of  a  partner  of  A.  B.  P.,  and  a  lis)  of  debts  due  said 
supposed  insolvent,  as  well  in  his  individual  capacity  as  in  the  capa- 
city of  a  partner  of  A.  B.  P.,  and  so  produced  and  delivered  by  the 
said  E.  W.  to  the  said  R.  R.,  recorder  as  aforesaid  (and  So  referred 
to  by  the  said  E.  W.  in  his  said  oath  and  affidavit),  as  containing  an 
account  of  his  creditors  and  the  place  of  their  residence,  and  the  in- 
ventory of  his  estate,  together  with  the  evidences  of  his  title  thereto, 
were  not  in  all  respects  just  and  true,  as  he  the  said  E.  W.  well 
knew  at  the  time  he  took  and  made  said  oalli  and  affidavit  in  maimer 
aforesaid. 

And  whereas,  in  fact  and  in  truth,  the  said  papers  so  produced  and 
delivered  as  aforesaid,  by  the  said  E.  W.  to  the  said  R.  R.,  so  pur- 
porting as  aforesaid  to  be  a  full  and  just  inventory  of  all  the  estate, 
both  real  and  personal,  in  law  and  in  equity  of  him  the  said  E.  W., 
represented  to  be  an  insolvent  debtor,  and  of  all  the  books,  vouchers 
and  securities  (meaning  of  all  the  books,  vouchers  and  securities  re- 
lating to  the  same),  as  well  iu  his  individual  capacity  as  in  tlie  capa- 
city of  the  partner  of  A.  B.  P.,  and  in  the  said  oath  and  affidavit  of 
the  said  E.  W.  referred  to,  was  not  a  full  and  just  inventory  of  all  the 
estate  and  effects  of  which  iie  the  said  E.  \V.  was  possessed,  or  in,  or 


298  OFFENCES  AGAINST  SOCIETY. 

to  which  he  was  interested  or  entitled  individually,  or  in  the  capacity 
of  the  partner  of  said  A.  B.  P.,  at  the  time  when  the  said  petition  was 
so  presented  as  aforesaid,  and  -at  the  time  the  said  oath  and  affidavit 
was  taken,  and  the  papers  therein  referred  to,  were  delivered  to  the 
said  R.  R.,  recorder  as  aforesaid,  as  he  the  said  E.  W.  well  knew 
when  he  took  said  oath  and  affidavit  and  delivered  said  papers;  for 
that  the  said  E.  VV.  then  and  there,  at  the  time  he  presented  said 
papers,  referred  to  in  said  affidavit,  and  took  said  oath  and  alfidavit 
and  delivered  said  papers,  for  that  the  said  E.  W.  then  and  there,  at 
the  time  he  presented  said  papers,  referred  to  in  said  affidavit  and 
took  said  oath,  was  interested  in,  and  owned  individually,  and  as  the 
partner  of  said  A.  B.  P.,  the  following  estate  and  property,  to  wit, 
three  thousand  five  hundred  dollars,  in  goods,  wares  and  merchan- 
dise and  money,  in  the  hands  of  G.,  M.  and  Company,  merchants  in 
Philadelphia;  also,  sundry  trunks  of  dry  goods,  jewelry  and  hard- 
ware and  furniture,  found  in  a  dwelling  house  lately  occupied  by  said 
A.  B.  P.,  in  I^lizabeth  street,  in  said  City  of  New  York,  of  the  value 
of  one  thousand  dollars;  also,  sundry  goods  in  a  store  in  Chatham 
street,  of  the  value  of  two  thousand  dollars,  and  also  sundry  trunks 
of  dry  goods,  in  the  hands  of  one  J.  B.  of  Troy,  in  said  state,  of  the 
value  of  nine  hundred  dollars ;  also,  sundry  notes  of  hand  due  from 
said  B.,  of  the  value  of  nine  hundred  dollars,  and  sundry  other  goods, 
wares  and  merchandise  and  money,  bonds,  notes  of  hand,  bills  of  ex- 
change, and  debts  due  said  W.,  and  said  W.  and  P.,of  great  value,  to 
wit,  of  the  value  of  one  thousand  dollars,  all  wliich  was  knowingly 
and  fraudulently,  by  said  E.  W.,  left  out  of  his  aforesaid  inventory 
and  papers,  referred  to  in  his  said  oath  and  affidavit. 

And  whereas,  in  truth  and  in  fact,  the  said  last  mentioned  papers 
so  purporting  as  aforesaid  to  be  a  full  and  just  inventory  of  all  the 
estate,  both  real  and  personal,  in  law  and  equity  of  him  the  said  E. 
W.,  represented  to  be  an  insolvent  debtor,  .and  of  all  the  books, 
vouchers  and  securities  (meaning  of  all  the  books,  vouchers  and  se- 
curities relating  to  the  estate  of  him  the  said  E.  W.),  as  well  in  his 
individual  capacity  as  in  the  capacity  of  the  partner  of  A.  B.  P.,  and 
a  list  of  debts  due  said  alleged  insolvent,  as  well  in  his  individual 
capacity  as  in  the  capacity  of  the-  partner  of  A.  B.  P.,  and  so  produced 
and  delivered  as  aforesaid,  by  the  said  E.  W.  to  the  said  R.  R.,  record- 
er as  aforesaid,  and  in  said  affidavit  and  oath  of  the  said  E.  W.  re- 
ferred to,  was  not  a  just  and  true  inventory  and  account  of  all  such 
parts  of  the  goods,  wares  and  merchandise,  money,  estate  and  effects 
of  him  the  said  E.  W.,  in  his  individual  capacity  or  in  the  capacity  of 
fhe  partner  of  said  A.  li.  P.,  and  of  all  books,  vouchers  and  securities 
relating  thereto,  as  were  at  the  time  when  the  said  petition  and  affi- 
davit and  the  said  papers  so  purporting  as  aforesaid,  and  in  the  said 
oath  and  affidavit  of  the  said  E.  W,  referred  to,  were  so  produced  and 
delivered,  by  the  said  E.  W.  to  the  said  R.  R.,  recorder  as  aforesaid, 
in  the  custody,  possession,  power  or  knowledge  of  him  the  said  E. 
W,;  for  that  said  E.  W.  was  then  and  there,  to  wit,  at  the  time  of 
presenting  said  papers  and  taking  said  oath,  and  presenting  said 
alliflavit,  interested  in  a  large  part  and  proportion  of  the  estate  and  pro- 
perly above  enumerated,  and  other  property,  consisting  of  dry  goods, 


PERJURY.  299 

ire/chandise  and  debts  due,  to  a  large  amount,  to  wit,  one  thousand 
dollars. 

And  wliereas,  in  truth  and  in  fact,  the  said  E.  W.,  at  the  time 
when  the  said  papers  as  aforesaid,  and  in  the  said  oath  and  affidavit 
of  the  said  E.  W.  referred  to,  were  so  produced,  presented  and  de- 
hvered  by  the  said  E.  W.  to  the  said  R.  R.,  recorder  as  aforesaid,  to 
wit,  on  the  said  twenty-sixth  day  of  October,  in  the  year  of  our  Lord 
one  thousand  eight  lunidred  and  twenty-nine,  at  the  Second  Ward  of 
the  City  of  New  Yorli  aforesaid,  in  the  County  of  New  York  aforesaid, 
for  the  future  benefit  of  himself  or  his  family,  had  disposed  of  and  made 
over  apart  of  his  the  said  E.  W.'s  personal  estate  of  great  value,  to  wit, 
the  money,  notes  of  hand,  bonds,  acceptances,  furniture  and  goods, 
Avares  and  merchandise  aboveenumerated,of the  valueof  fivethousand 
dollars,  the  same  not  being  the  necessary  wearing  apparel  of  himself  or 
his  family,or  the  beds  or  beddingof  his  the  said  E.  W.'s  family,  with  the 
intent  to  defraud  some  one  or  more  of  his  the  said  E.  W.'s  creditors,  and 
with  a  view  to  obtain  fraudulently  the  benefit  of  the  said  act  of  the  legis- 
lature of  the  State  of  New  York,  entitled  "an  act  to  abolish  imprison- 
ment for  debt  in  certain  cases,"  so  passed  as  aforesaid,  April  seventh, 
one  thousand  eight  hundred  and  nineteen. 

And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
tiie  said  E.  W.,  on,  &c.,  at,  &c.,  in  his  oath  and  affidavit  aforesaid, 
before  the  said  R.  R.,  as  such  recorder  as  aforesaid,  upon  his  oath 
aforesaid  (he  the  said  R.  R.,  then  and  there  having  and  possessing, 
by  virtue  of  said  acts  of  the  legislature  aforesaid,  a  lawful  and  com- 
petent power  and  authority  to  administer  tiie  said  oath  to  him  the 
said  E.  W.  so  as  aforesaid,  and  then  and  there  to  take  and  receive 
the  said  affidavit  of  the  said  E.  W.),  by  his  own  act  and  consent,  and 
in  form  and  manner  aforesaid,  did  knowingly,  falsely,  maliciously, 
wilfully  and  corruptly  commit  wilful  and  corrupt  perjury,  in  and 
upon  points  and  things  matei-ial  to  his  obtaining  the  benefit  of  the 
said  act  of  the  legislature  of  the  State  of  New  York,  entitled  "an  act 
to  abolish  imprisonment  for  debt  in  certain  cases,"  to  the  great  dis- 
pleasure of  Almighty  God,  in  contempt  of  the  said  acts  of  the 
legislature  aforesaid,  to  the  evil  example  of  all  others  in  like  case 
offending,  contrary,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Against  an  insolvent  in  Pennsylvania,  for  a  false  account  of  his  estate.{q) 

That  I.  L.,  late,  &c.,  on,  &c.,  being  a  person  charged  in  execution 
for  divers  sums  of  money  not  exceeding  in  the  whole  the  sum  of  one 
hundred  and  fifty  pounds  and  contriving  and  intending  to  cheat  and 
defraud  a  certain  J.  H.  and  others  his  creditors,  of  their  just  debts, 
upon  the  application  and  petition  of  him  the  said  I.  presented  to  the 
County  Court  of  Common  Pleas  holden  at  Philadelphia  in  and  for  the 
County  of  Philadelphia,  was  brought  up  before  the  justices  of  the 
same  court,  agreeably  to  the  directions  of  the  act  of  assembly,  entitled 

{q)  This  indictment  was  drawn  by  Mr.  Bradford,  and  found  and  sustained  in  1787, 
under  the  laws  tiien  in  force. 


300  OFFKNCES  AGAINST  SOCIETY. 

"  an  act  for  the  relief  of  insolvent  debtors  within  tliis  province  of 
Pennsylvania,"  and  then  and  there  in  his  petition  aforesaid  did  athrm 
and  assert,  that  he  tlie  said  I.  had  no  estate  real  or  personal,  and  then 
and  there  before  the  justices  of  the  same  court,  did  take  his  corporal 
oath, administered  according  to  law  and  the  directions  of  the  said  act,  l)y 
the  said  court,  and  then  and  there  before  the  said  court  upon  his  oath 
aforesaid,  falsely,  corruptly  and  maliciously  and  wilfully  did  swear,  de- 
pose and  affirm  that  the  account  by  him  the  said  I.  delivered,  into  the 
said  court  in  his  said  petition  to  the  said  court,  did  contain  a  full  and 
true  account  of  all  his  real  and  personal  estate,  debts,  credits  and  effects 
whatsover,  which  he  the  said  I.  or  any  in  trust  for  him  then  had,  or 
at  the  time  of  his  imprisonment  had,  or  then  was  in  any  respect  en- 
titled to,  in  possession,  remainder  or  reversion,  except  the  wearing 
apparel  and  bedding  for  him  or  his  family,  and  the  tools  or  instruments 
of  his  trade  or  calling,  not  exceeding  live  pounds  in  value  in  the  whole, 
and  that  he  had  not  at  any  time  since  his  imprisonment  or  before, 
directly  or  indirectly,  sold,  leased,  assigned  or  otherwise  disposed  or 
made  over  in  trust  for  himself,  or  otherwise,  other  than  as  mentioned 
in  such  account,  any  part  of  his  lands,  estate,  goods,  stock,  money, 
debts  or  other  real  or  personal  estate,  whereby  to  have  or  expect  any 
benefit  or  profit  to  himself,  or  to  defraud  any  of  his  creditors  to  whom 
the  said  I.  was  then  indebted,  whereas  in  truth  and  in  fact,  he  the 
said  L  then  had  and  well  knew  that  he  had  a  certain  debt  amounting 
to  the  sum  of  seven  pounds  and  ten  shillings,  due  from  a  certain  J.  M. 
and  payable  to  him  the  said  I.  L.,  and  whereas  in  truth  and  in  fact, 
the  said  I.  L.  then  and  there  had  and  well  knew  that  he  had  divers 
otlier  debts,  goods  and  chattels  exceeding  in  value  the  sum  of  five 
pounds ;  and  so  the  inquest  aforesaid,  upon  their  oaths  and  affirma- 
tions aforesaid,  do  say,  that  the  said  I.  L.,  on  the  day  and  year  afore- 
said, at  the  city  aforesaid,  before  the  court  aforesaid,  in  manner  and 
form  aforesaid,  falsely,  maliciously,  wilfully  and  corrui»tly  did  commit 
wilful  and  corrupt  perjury,  to  the  great  displeasure  of  Almighty  God, 
and  against,  &c.     {Conclude  as  in  book  1,  cJiap.  3). 

For  false  swearing  in  answering  interrogatories  on  a  rule  to  shoxo  cartse 
ichy  an  attachment  should  not  issue  for  a  contempt  in  speaking  oppro- 
brious irords  of  the  court  in  a  civil  suit.{r) 

That  at  a  Court  of  Common  Pleas  held  at  Chambersburg,  in  and  for 

()•)  In  Res.  V.  Newel),  3  Yeates  407,  several  exceptions  were  taken  to  tliis  indictment  in 
arrest  ofjudirmcnt,  which  arc  fully  discussed  by  Suiitii  J.: 

"  1.  The  first  reason  is,  that  the  deposition  on  wliich  the  perjury  is  assigned,  is  stated 
to  be  on  an  interrogatory  filed  between  the  conimonwealtii  and  the  defendant,  on  the  part 
of  the  cotnnionwcallh  ;  without  stating  any  |)rocccding  between  tlic  commonwealth  and 
the  defendant,  in  which  the  said  dejwsition  would  lie  material. 

"This  objection  was  taken  at  the  trial  imder  another  shape,  and  was  overruled  by  tlie 
court.  It  was  tiien  said,  that  the  interrogatories  were  wrongly  entitled  ;  that  the  plea  was 
pending  between  James  I'aylor  and  Thomas  Sliirley,  and  the  rule  was  entered  in  that 
caiisf!  ;  and  inasmuch  as  the  ])roceedings  were  on  tlie  civil  side  of  the  court  until  the  at- 
tachment issued,  the  interrogatories  should  have  been  filed  in  that  suit,  and  headed  accord- 
ingly. To  this  point  were  cited  3  Term  Kep.  233  and  6  Term  IJcp.  C42,  note,  and  the 
case  of  Caleb  Wayne,  lately  decided  in  the  Circuit  Court  of  the  United  States,  for  the  east- 
ern district  of  Pennsylvania.     Tiic  answer  given  was,  that  wc  had  not  adopted  tliat  nicety 


PERJURT.  301 

the  County  of  Franklin,  before  J.  R.,  Esq.,  and  his  associates,  judges 
of  the  said  coart,  upon,  &c.,  a  certain  plea  was  then  and  there  pend- 
ing between  a  certain  J.  T.,  plainlifl',  and  a  certain  T.  S,,  defendant, 

of  form  here,  wtiich  was  practised  in  England ;  but  at  the  utmost,  that  the  defendant 
sliould  have  talten  advantage  of  tlic  informality  and  showed  to  the  court  the  grounds  of  his 
refusal  to  answer  the  interrogatories.  He  was  now  too  late,  after  he  had  come  in  and  volun- 
tarily submitted  to  answer.  Tlie  rule  was  entered  in  December  term,  17!)!),  that  the  de- 
fendant should  show  cause  why  an  attachment  should  not  issue  against  him,  for  treating 
tlie  process  of  the  court  with  contempt,  and  using  opprobrious  words  respecting  tiie  court. 
This  rule  was  groimded  on  due  proof  niade  of  his  im[)roper  conduct  previous  tiiereto.  He 
was  then  actually  in  contempt.  We  considered  the  rule  to  siiow  cause  in  such  a  case  as 
wholly  unneces.sary.  For  contemptuous  words  spoken  of  a  court,  its  rules  or  process,  an 
attachment  issues  immediately  of  course  ;  Sayerll4;  1  Stra.  185.  The  parly  must  an- 
swer in  custody,  for  it  is  to  no  purpose  to  serve  him  with  a  second  rule,  that  has  slighted 
and  despised  the  first;  it  would  expose  the  court  to  further  contempt;  1  Salk.  84.  The 
jurisdiction  of  the  court  on  its  criminal  side  grew  out  of  the  civil  action,  returned  on  the 
certiorari  in  the  plea  above  stated,  and  the  oath  of  the  party  became  material.  The  issu- 
ing of  the  attachment  is  only  for  the  purpose  of  bringing  in  the  party  to  answer  to  the 
interrogatories,  and  if  he  can  swear  off  the  contempt  he  is  discharged;  12  Mod.  348.  If 
he  deny  all  on  oath,  he  is  set  at  liberty  ;  but  he  must  be  indicted  for  perjury  if  he  forswear 
himself;  12  Mod.  511;  8  Mod.  81-;  Dough  498;  Mosel.  250;  1  Stra.  444';  Annal.  178; 
4  Burr.  2106.  Wlien  therefore  Newell  appeared  in  the  Court  of  Common  Pleas,  to  purge 
himself  of  the  contempt  charged  against  liim,  we  viewed  him  in  the  same  light  as  if  his 
presence  had  been  enforced  by  attachment,  and  were  of  opinion,  that  in  either  case,  the 
interrogatories  should  be  entitled  in  the  same  manner.  'We  considered  the  rule  to  show 
cause  stated  in  the  indictment,  as  mere  matter  of  inducement.  An  indictment  for  perjury 
at  an  assize,  may  allege  the  oath  to  have  been  taken  before  one  of  the  judges  in  the  com- 
mission, though  the  names  oC Itotli  are  inserted  in  the  caption;  Leach  154. 

"2.  Tiie  .second  objection  is,  that  it  is  not  stated  that  the  defendant  took  an  oath  on  the 
holy  gospel  of  God,  or  in  the  presence  of  Almishty  God  by  uplitltcd  hand.  The  indict- 
ment  charges,  that  'the  said  Robert  Newell  did  then  and  there,  in  due  form  of  law,  take 
Ills  corporal  oath,'  &e.  Tiiis  form  was  approved  of  by  I-ord  Hardwicke,  who  says,  the 
words  corporal  oath  may  stand  for  lifting  up  an  arm  or  other  bodily  member.  VVhat  is 
universally  understood  by  an  oath  is,  that  '  the  person  who  takes  it,  imprecates  the  ven. 
gcance  of  God  upon  him  if  tlie  oath  he  takes  is  false;'  1  Atky.  20.  In  the  great  case  of 
Omychund  v.  Barker,  Ld.  Chan.  Baron  Parker  said,  he  did  not  think,  tattis  sacris  Evan- 
geliis  were  necessary  words  ;  for  several  old  precedents  are,  that  the  party  was  juratus 
getierally,  or  dehito  modo  juratus  ;  vide  West's  Symb.  2d  part,  under  the  head  of  Indict- 
ments and  Offences,  s.  160;  1  Atky.  43,  44.  Lord  Chief  Justice  Willes  says,  that 
sacrosancta  Evantrelia  arc  not  at  all  material  words  in  indictments  for  perjury;  ib.  4G. 
Lord  Chancellor  Hardwicke  asserts  the  same  opinion,  and  observes  that  the  Iramers  of 
indictments  are  apt  to  throw  in  words,  and  to  swell  them  out  too  much  to  no  purpose  ; 
therefore  the  old  precedents  are  the  best  ;  ih.  50.  According  to  Lord  Chief  Justice  Ken- 
yon,  an  indictment  for  perjury  is  sufficiently  certain,  if  it  only  states  the  defendant  to  have 
been  in  due  manner  sworn;  Fcake  156;  vide  i6. 23;  Mee  c.  Rerd,  and  Leach  C  C  348; 
Mildrone's  case. 

'•3.  The  third  reason  in  arrest  of  judgment  i^  most  material,  and  has  obtained  from  us 
much  consideration.  It  is  this:  that  in  the  assignment  of  the  perjury,  it  is  not  slated  that 
the  defendant  did  falsely,  corruptly  anil  xDilfully  swear,  &c. 

"  If  the  indictment  is  considered  as  grounded  on  the  statute  5  Eliz.  c  9,  it  is  certainly 
defective ;  because  the  words  wilfully  and  corruptly  are  inserted  in  the  sixth  paragraph, 
as  material  descriptions  of  the  otlence.  And  it  is  clearly  settled,  that  in  every  prosecution 
on  this  statute,  the  words  thereof  must  be  exactly  pursued  ;  and  therefore,  that  an  indict- 
ment  or  action  on  the  said  statute,  alleging  that  the  defendant  deposed  such  a  matter/a/se 
and  deceptive  (2  Leon.  211  ;  3  Leon.  2.30 ;' 1  Show.  190);  or,  false  et  corruptive  (Hill.  12; 
Cro.  El.  147);  or,  false  and  voluntarie;  (Sav.  43) ;  without  expressly  saying  that  he  did  it 
voluntarie  et  corrupte,  is  not  good,  and  that  such  a  defect  cannot  even  be  supplied  by  add- 
ing the  words  contra  formam  statuti,  or  concluding  el  sic  voluntariurn  et  corruptum  com- 
misit  perjurium;  2  Leon.  214;  I  Leon.  230  ;  Hetl.  12 ;  Savih  43;  Cro.  El.  147  ;  I  Hawk, 
c.  60,  s.  17. 

"  The  present  indictment  concludes, '  contrary  to  the  act  of  genera!  assembly  in  such 
case  made  and  provided.'  But  on  examining  our  statute  book  it  will  be  found,  that  the 
only  law  respecting  this  offence  in  courts  of  justice,  was  enacted  on  the  31st  May,  1718, 
tile  24th  section  whereof  goes  to  subornation  of  perjury  ;  and  the  25th  section  extends  the 

26 


302  -  OFFENCES  AGAINST  SOCIETY. 

upon  a  certiorari  directed  to  R.  N.,  Esq.,  and  returned  into  the  said 
court,  and  the  said  court  did  then  and  there  make  a  rule  of  the  said 
court  in  substance  as  follows,  to  wit :  "Rule  that  R.  N.,  Esq.,  show 


English  statute  of  5  Eliz.  c.  9,  and  declares,  that  this  statute  shall  be  put  into  due  execu- 
tion  here;  I  8t.  Laws  143.  The  act  of  5th  April,  1790  (2  St.  Laws  804),  which  was  made 
perpetual  by  the  act  of  4th  April,  1799  (4  St.  Laws  399),  prescribes  fine  and  imprison- 
ment, in  lieu  of  the  former  infamous  punishments  of  pillory  and  whipping.  It  will  be 
further  found,  that  this  statute  of  5  Eliz.  c.  9,  extends  to  no  other  perjury  than  that  of  a 
tcitness;  and  tlierefore  no  one  can  come  within  the  statute,  by  reason  of  any  false  oath  in 
an  answer  to  a  bill  in  clianccry  (Cro.  El.  148;  2  Leon.  201  ;  Dalis.  84;  Yelv.  120),  or 
in  swearing  the  peace  against  another  (2  Roll.  Ab.  77,  pi.  5),  or  by  reason  of  a  false  wa- 
ger ot  law  (Noy.  7,  108),  or  for  taking  a  false  oath  before  commissioners  appointed  by 
the  king,  to  make  an  inquiry  concerning  his  title  to  certain  lands;  Moor  627;  1  Hawk.  c. 
69.  s.  20).  It  therefore  necessarily  follows,  that  if  the  indictment  had  been  framed  with  the 
uti..L.st  correctness,  under  the  statute  of  5  Eliz,,  the  offence  of  the  defendant  was  not  punish- 
able  thereby,  because  he  was  not  a  witness,  examined  in  a  court  of  justice,  in  the  usual 
course  of  proceeding. 

"  Perjury  is  defined  by  Lord  Coke,  to  be  a  crime  committed,  when  a  lawful  oath  is  ad- 
ministered in  some  judicial  proceeding,  to  a  person  wlio  swears  wilfully,  absolutely  and 
falsely,  in  a  matter  material  to  the  issue,  or  point  in  question  ;  3  Inst.  164;  4  Bl.  Com.  137. 
And  in  10  Mod.  195,  it  is  laid  down,  that  the  oatli  must  not  only  be  false,  but  wilful  and 
miilicious,  to  make  it  perjury.  Here  the  lefrality  of  the  oath,  and  the  propriety  of  tiie  judi- 
cial procedure,  are  indisputable.  The  indictment  stiites,  that  the  defendant  did  'then  and 
there  voluntarily,  and  of  his  own  free  will  and  accord  propose  to  tlie  said  court,  to  purge 
himself  u[)on  oath  of  the  said  contempt  alleged  against  him  ;  that  he  was  then  and  there 
duly  sworn  on  his  corporal  oath,  and  then  and  there  did  answer  and  declare,'  &,c.;  nega- 
tiving by  express  averments  the  trulii  of  his  oath,  with  a  conclusion,  that '  he  the  said 
Robert  Newell,  the  day  and  year  aforesaid,  at  C'hanibcrsburg  aforesaid,  &c.,  &c.,  by  his 
own  act  and  consent,  and  of  his  own  most  wicked  and  corrupt  mind  and  dis[)osition,  in 
manner  aforesaid,  did  knowingly,  falsely,  wickedly ,  maliciously  and  corruptly  commit  wil- 
ful and  corrupt  perjury,'  tfcc. 

"  On  the  bare  reading  of  the  indictment,  one  would  reasonably  suppose  that  the  wilfulness, 
alisoluteness,  falsity  and  malice  of  the  oath  were  suftieiently  asserted  and  charged  against 
the  defendant.  But  his  counsel  have  ingeniously  objected,  that  it  does  not  pursue  the 
course  of  the  precedents,  and  that  tlie  offence  is  not  laid  in  a  manner  known  to  tlie  law. 

"  We  iiold  ourselves  bound  by  |)recedents.  We  flatter  ourselves,  we  can  say  with  Lord 
C'hief  Justice  Kenyon,  'it  is  our  wish  and  comfort  to  stand  super  antiquas  vias  ;'  7  Term 
Rep.  668.  In  criminal  cases,  we  will  not  intentionally  inflict  new  hardships  on  any  one, 
let  our  individual  feelings  be  what' they  may.  To  satisfy  our  minds  in  this  particular,  my 
brother  Yeates  and  1  have  made  diligent  and  painful  researches  into  the  books  of  entries 
on  the  criminal  law.     The  result  of  our  inquiries  has  been  as  follow: 

"  In  Rex  V.  O^ifcs,  5  St.  Tri.  4,  the  indictment  lor  perjury  eiiarges  iiim  that  he  falsely, 
rnhndarily  and  corruptly  did  say,  &c.  So  on  the  second  indictment  against  him  ;  ih.  70. 
In  Rex  V.  Sir  Patience  Ward,  3  St.  Tri.  661,  the  information  states  that  he  falsely  and 
corruptly  did  awciir,  iLc.  In  R{'x  t).  Elizabeth  Canning,  10  St.  Tri.  206,  the  indictment 
charges  that  she  did  falsely,  wickedly,  voluntarily  and  corruptly  say,  &c.  In  Tremaine's 
Pleas  of  the  Oown,  p.  136  to  167,  there  are  tliirte(;n  indictments  ibr  perjury,  all  of  which 
are  laid  with  the  epithets  (or  some  of  them)  falsely,  corrnptly,imiliciously  and  voluntarily, 
&.C.  In  Stubb's  Crown  (Jirct.  Coinp.  308  to  334,  there  aie  seven  indictments,  with  the 
same  epithets,  ap|)lied  to  the  acts  of  swearing.  So  in  ('lift's  Entries  399,  401,  there  are  two 
informations  fi)r  perjury  at  the  assize's,  that  Ihe  defendant  inali ciously,  voluntarily  nnd  cor- 
ruptly swore,  &.e.  And  in  Rex  n.  Gree|)e,,  5  M(jd  343,  an  information  at  common  law  for 
ix-rjury  in  a  trial  at  bar  in  r('[>levin,  charges  the  delindant,  that  \\c  falsely,  maliciously,  vol- 
untarily and  corrvpllij  on  his  oath,  said,  &e.  In  Co.  Knt.  164,  b.  357,  a.,  there  are  two 
precedents  of  actions  broufrht  in  debt,  on  the  stut.  5  Eliz.  e.  9,  wherein  it  is  laid,  that  the 
defendants  voluntarily  and  corruptly  swore,  &.e.  And  so  in  many  other  actions  of  debt  in 
other  books. 

"  On  the  otluT  hand,  in  the  same  book,  1 65,  b.,  there  is  a  form  in  a  deposition  before  com- 
minsioners  on  intcrrofratories  in  chancery,  wherein  the  epithets  are  not  used.  So  in  Rasl. 
Ent.  441,  the  declaration  lays  the  swearing  without  those  terms, /;cr  quod  idem  li.  volun- 
tarte  el  rtiii  iiplirp  rorntiiisil  jierjariuni  vulii ninriiim. 

"  In  Offiruiin  Cli-nci  I'acis  (a  book  containing  many  excellent  precedents),  fbl.  87,  we 
find  an  indictment  for  perjury,  in  a  deposition  resembling  the   present  case  in   all  parti- 


PF.RJfKV.  803 

cnnse  by  the  next  term,  why  an  attachment  shall  not  issue  against 
him  for  treating  the  process  of  this  court  with  contempt,  and  using 
opprobrious  words  to  a  person  who  served  upon  him  a  copy  of  a 
rule  of  this  court,  while  the  person  was  engaged  in  that  service." 

And  tiie  jurors  aforesaid  do  iurther  present,  that  afterwards,  to  wit, 
upon  &c.,  in  the  county  aforesaid,  and  within  the  jurisdiction  of  this 
court,  the  said  R.  N.,  Esq.,  of  the  county  aforesaid,  did  appear  in  his 
proper  person^  before  the  said  Court  of  Common  Pleas,  held  by  the 
judges  aforesaid,  and  did  then  aud  there  voluntarily  and  of  his  own 
free  will  and  accord  propose  to  the  said  court  to  purge  himself  upon 
oath  of  the  said  contempt  alleged  against  him,  whereupon  certain  in- 
terrogatories were  then  and  there  drawn  up  in  writing,  and  proposed 
to  the  said  R.  N.,  Esq.,  in  substance  as  follows,  to  wit : 

Pennsylvania  against  R.  N.,  Esq. — In  the  Common  Pleas  of 
Franklin  County. 

Interrogatories  exhibited  on  the  part  of  the  commonwealth.  1st. 
Did  T.  S.  at  any  time  previous  to  the  last  December  term  for  this 

culars.  It  slates,  that  the  defendant  '  being  sworn,  said  and  upon  his  oath  affirmed  and 
dejioscd  in  manner  following,  itc.  Whereas  in  truth  and  in  fact,  &c.,  voluntarily  and  cor- 
ruptly  committed  voluntary  and  corrupt  perjury,'  &c.  Again  in  West's  Symbol,  119,  b., 
s.  160,  another  form  of  the  same  kind  occurs  for  perjury  in  a  depo>ition  before  commis- 
sioners by  commission  out  of  the  Court  of  Wards.  But  in  the  same  book  and  page,  s.  161, 
for  perjury  in  a  deposition  before  commissioners,  by  commission  out  of  Chancery  on  the 
Stat,  of  5  Eliz.,  after  the  words  in  the  indictment, '  whereas  in  truth  the  said  H.  S.  did  not 
cause,  &c.,  neither,  &:.c.,  {vegando  effectum  depositionis),  pmut  prcedict.  IF.  falsi  and  cor- 
rupte  deposuit  et  juravit,  per  quod,''  &c.  And  again,  ib.  138,  s.  241,  an  indictment  for 
perjury  committed  in  an  answer,  in  the  Exchequer  at  Chester,  states,  that  the  defendant  on 
1)13  oath, 'said,  affirmed  and  swore  these  English  words  following,  &.C.,  and  so  the  said  R. 
in  making  and  confirming  iiis  answers  in  that  part  aforesaid,  the  day  of  at,  &.C., 

voluntarily  and  corruptly  committed  voluntary  perjury,'  &-c. 

"  It  is  evident  therefore,  that  tiic  forms'of  indictment  at  common  law  for  perjury,  are  not 
uniformly  the  same;  but  the  words  falsehj,  corruptly  and  wilfully,  as  applied  adjectively 
or  adveri»ially  to  the  act  of  swearing,  are  mere  expletives  to  swell  the  sentence,  in  the  lan- 
guage of  Lord  Hardwicke  ;  1  Atky.  50. 

"  We  find  no  adjudged  case  or  dictum  in  the  books,  that  such  words  are  appropriate 
terms  of  at  t,  descriptive  of  the  crime  of  perjury,  at  common  law,  as  murdravit  in  an  in- 
dictment for  murder,  cepil  in  larceny,  mayhemiavit  in  mayhem,  ftloniee  in  felony,  &c. ;  2 
Hawk.  c.  25,  s.  55.  On  the  contrary,  we  do  find  it  laid  down  by  the  judges,  that  an  in- 
dictment for  perjury  at  common  law,  does  not  require  so  much  certainty  as  on  the  statute 
and  that  it  need  not  be  in  a  court  of  record,  or  matter  material  to  the  issue ;  5  Mod.  348  ; 
1  Sid.  106.  And  in  Cox's  case  (Leach  69),  it  was  agreed  by  ten  judges  unanimously,  that 
the  word  wilfully,  was  not  essentially  necessary  in  an  indictment  for  perjury  at  common 
hiw,  though  it  was  essential  in  an  indictment  for  perjury  under  the  stat.  of  5  Eliz.  c.  9, 
because  the  term  wilful  in  the  statute,  is  a  material  description  of  the  offence.  Still  it  is 
necessary,  that  it  should  appear  by  the  indictment  that  the  oath  was  wilfully  false. 

"  It  will  readily  be  agreed,  that  all  indictments  must  have  a  precise  and  sufficient  certainty, 
and  that  the  ofTencos  must  be  set  forth  with  clearness  and  certainty  ;  4  HI.  Com.  305-6. 
Every  person  should  be  apprised  of  the  distinct  charge  made  against  him,  in  order  that  he 
may  come  fully  prepared  for  his  defence.  But  in  the  words  of  the  humane  Lord  Hale, 
'  the  great  strictnesses  and  unseemly  niceties,  required  in  some  indictments,  tend  to  the  re- 
proach of  the  law,  to  the  shame  of  the  government,  to  the  encouragement  of  villainy,  and  to 
the  dishonour  of  God  ;'  2  H.  H.  P.  C.  193. 

"  4  The  last  reason  offered  in  arrest  of  judgment,  is,  that  the  indictment  is  insensible 
and  repugnant,  and  is  defective  both  in  form  and  substance.  This  objection  being  made 
in  general  terms,  must  necessarily  refer  to  the  supposed  defects  before  particularly  speci- 
fied and  alre;;dy  considered.  . 

"  Upon  the  whole,  on  the  best  consideration,  whicli  my  brother  Yeates  and  I  have  been 
capable  of  giving  to  the  different  reasons  filed  in  arrest  of  judgment,  our  official  duty  con- 
strains us  to  say,  tiiat  they  are  not  relevant  in  point  of  law,  and  that  the  commonwealth  is 
cntiljed  to  judgment." 


304  OFFENCES  AGALVST  SOCIETY. 

county,  serve  yon  with  a  copy  of  a  rule  of  the  Court  of  Common  Plens 
of  Franklin  County,  to  show  cause  wliy  an  attaclunent  should  not 
issue  against  you  for  a  contempt  of  the  said  court  ?  2d.  After  having 
read  the  copy  of  the  rule  mentioned  in  the  first  interrogatory,  did  you 
say  "Damn  the  court,  they  are  a  set  of  damned  stool-pigeons,"  and 
say  "  If  the  court  want  a  copy  of  my  judgment,  they  may  come  for 
it  ?"  or  did  you  make  use  of  any  of  the  expressions  above  stated  ? 

And  the  said  R.  N.  did  tlien  and  there  in  due  form  of  law,  take  his 
corporal  oath  before  the  said  court  (they  having  sufficient  and  com- 
petent power  and  authority  to  administer  an  oath  to  tlie  said  R.  N.  in 
that  behalf),  that  he  the  said  R.  N.  would  true  answers  make  to  the 
said  interrogatories;  and  he  the  said  R.  N.  being  so  sworn  upon  his 
corporal  oath,  on  the  matters  contained  in  the  said  interrogatories  did 
then  and  there  answer  and  declare  before  the  said  court,  in  answer  to 
the  said  second  interrogatory,  tliat  he  (himself  the  said  R.  N.  mean- 
ing), did  not  make  use  of  any  of  the  expressions  therein  (the  said  in- 
terrogatory meaning),  contained ;  whereas  in  truth  and  in  fact,  the 
said  R.  N.  after  having  read  the  copy  of  (he  rule  of  the  court  afore- 
said did  say,  "  Damn  the  court,  they  are  a  set  of  damned  stool- 
pigeons."  And  whereas  in  truth  and  in  fact,  the  said  R.  N.,  after  hav- 
ing read  the  copy  of  the  rule  last  aforesaid,  did  say,  "  If  the  court  want 
a  copy  of  my  judgment,"  (the  judgment  of  him  the  said  R.  N.  in  the 
said  cause  between  J.  T.  and  T.  S.  meaning),  "  they  may  come  for 
it."  And  so  the  jurors  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  respectively  do  say,  that  the  said  R.  N.  on  the  said  third 
day  of  April,  in  the  year  last  aforesaid  at  C.  aforesaid,  in  the  county 
aforesaid  andwithin  the  jurisdiction  of  this  court,  upon  his  oath  afore- 
said, before  the  said  Court  of  Common  Pleas  (the  said  Court  of  Common 
Pleas  then  and  there  having  sufficient  and  competent  power  and  autho- 
rity to  administer  the  said  oath  to  the  said  R.  N.),  by  his  own  act  and 
consent,  and  of  his  own  most  wicked  and  corrupt  mind  and  disposition, 
in  manner  and  form  aforesaid  did  knowingly,  falsely,  wickedly,  ma- 
liciously, wilfully  and  corruptly  commit  wilful  and  corrupt  perjury, 
to  the  great  displeasure  of  Almighty  God,  to  the  evil  and  pernicious 
example  of  all  others  in  like  case  ollending,  contrary,  &c.,  and  against, 
&c.     {Conclude  as  in  book  1,  chap.  3). 

In  charging  J.  K.  with  larceny  before  a  justice  of  the  peace.(rr) 

That  formerly,  to  wit,  on,  &c.,  at  the!  county  aforesaid,  J.  M'C,  late, 
&c.,  came  before  J.  S.,  Esc|,,  then  and  yet  being  one  of  the  justices  of 
the  Commonwealth  of  Pennsylvania  assigned  to  keep  the  peace  in 
and  for  the  said  County  of  Philadelphia,  and  also  to  hear  and  deter- 
mine divers  felonies,  tres])asses  and  other 'misdeeds  committed  in  the 
said  county,  and  the  said  J.  M'C.  well  knowing  the  premises,  and 
wickedly  devising  and  intending  unjustly  to  aggrieve  one  I,  K.,  and 
to  procure  him  without  any  just  cause  to  be  imprisoned,  and  kept  in 
prison  for  a  long  space  of  time,  on  the  said  twelfth  day  of  December, 
in  the  year  aforesaid,  at  the  county  aforesaid,  the  said  J.  M'C.  then 

(rr)  Drawn  in  ITJI-t  l>y  Mr.  .lured  Ingcrsoll,  attorne3'-<,'ericral  of  Pennsylvania. 


I'ERJURY. 


305 


and  there  being  present  in  his  own  proper  person,  before  the  said  J. 
S.,  Esq.,  then  and  there  being  one  of  the  jnstices  of  the  common  weahli 
assigned  to  keep  the  peace  in  and  for  thesaid  Connty  of  Pliiladelpliia, 
and  also  to  hear  and  determine  divers  felonies,  trespasses  and  otiier 
misdeeds  committed  in  the  same  county,  he  the  said  J.  M'C.  did  theu 
and  there  talve  his  solemn  affirmation  before  the  said  J.  S.  (he  the  said 
J.  S.  then  and  there  having  sufficient  and  competent  power  and  au- 
thority to  administer  the  said  atHrmation  to  the  said  J.  M'C.  in  that 
behalf),  and  that  tlie  said  J.  M'C.  not  having  the  fear  of  God  before 
his  eyes,  but  being  moved  and  seduced  by  the  instigation  of  tiie  devil, 
then  and  there  before  the  said  J.  S.  upon  his  affirmation  aforesaid, 
falsely,  maliciously,  wickedly,  wilfully  and  corruptly  did  say, depose, 
affirm  and  declare  (among  other  things)  in  substance  and  to  the  effect 
following,  that  is  to  say,  that  he  the  said  J.  M'C.  on  the  twelfth  day 
of  December  in  the  year  aforesaid,  at  the  county  aforesaid,  was  pos- 
sessed of  five  silver  dollars,  and  he  the  said  J.  M'C.  being  so  pos- 
sessed thereof,  the  said  I.  K.  with  force  and  arms,  &c.,  at  the  county 
aforesaid,  did  take  and  carry  away  the  said  five  silver  dollars  out  of  and 
from  the  possession  of  the  said  J.  M'C,  thereby  meaning  and  intend- 
ing that  the  said  I.  K.  was  guilty  of  larceny,  and  had  with  force  and 
arms  feloniously  stolen,  taken  and  carried  away  the  said  five  silver 
dollars,  against  the  peace  of  the  commonwealth  at  the  county  afore- 
said; whereas  in  truth  and  in  fact,  at  the  time  he  the'  said  J.  M'C.  so 
took  his  solemn  affirmation  aforesaid,  in  form  aforesaid,  or  at  any 
other  time,  the  said  I.  K.  had  not,  with  force  and  arms,  taken  and 
carried  away  the  said  five  silver  dollars  out  of  the  possession  of  the 
said  J.  M'C,  nor  had  with  force  and  arms  and  against  the  peace  of  the 
commonwealth  feloniously  stolen,  taken  and  carried  away  the  same, 
but  the  said  J.  M'C  at  the  time  he  so  took  the  affirmation  aforesaid, 
in  form  aforesaid,  then  and  there  well  knew  that  the  said  I.  K.  had 
not  with  force  and  arms  and  against  the  peace  of  the  commonwealth 
taken  and  carried  away  the  said  five  silver  dollars,  out  of  the  posses- 
sion of  the  said  J.  M'C,  nor  feloniously  with  force  and  arms  and 
against  the  peace  and  dignity  of  the  commonwealth,  stolen,  taken  and 
carried  away  the  said  five  silver  dollars;  and  so  the  jurors  aforesaid, 
upon  their  oaths  and  affirmations  aforesaid,  do  say,  that  the  said  J. 
M'C.  on  the  twelfth  day  of  December,  in  the  year  aforesaid,  at  the 
county  aforesaid,  before  the  said  J.  S.,  being  such  justice  aforesaid 
(and  then  and  there  having  sufficient  and  competent  power  and  au- 
thority to  administer  the  said  affirmation  to  the  said  J.  INl'C),  and 
within  the  jurisdiction  of  this  court,  by  his  own  act  and  consent  and 
of  his  own  wicked  and  corrupt  mind  and  disposition,  in  manner  and 
form  aforesaid,  did  falsely,  wickedly  and  wilfully  and  corruptly  com- 
mit wilful  and  corrupt  perjury,  to  the  great  displeasure  of  Almighty 
God,  to  the  evil  and  pernicioiis  example  of  all  others  in  the  like  case 
ofl'ending,  contrary,  &.C.,  and  against,  &:c.  {Conclude  as  in  book  1, 
chap.  3). 


26' 


306  OFFEXCES  AGAINST  SOCIETY. 

In  charging  A.  JV.  u-iih  assault  avd  hatiery  before  a  justice. (s) 

That  lieretofore,  to  wit,  on,  &c.,  at,  &c.,  K.  M.,  late,  &c.,  came  be- 
fore H.  JM'K.,  Esq.,  then  and  yet  being  one  of  the  jnstices,  &.C.,  and 
then  and  tliere  upon  her  oath  charged  one  A.  N.  before  tlie  said  H. 
ISrK.,  the  jnstice,  &c.,  with  having  assaulted,  stricken,  &c.,  one  H.  M., 
being  the  husband  of  her  the  said  K.  M.  And  the  jurors,  &c.,  further 
present,  tliat  upon  the  examination  of  tlie  said  K.  M.,  before,  &c.,  upon 

(s)  State  15.  Mumford,  1  Dcv.  519. 

After  a  verdict  for  the  state,  the  counsel  for  flie  prisoner  moved  in  arrest  of  jiidg-mcnt, 
contending-  that  tlie  assignment  of  perjury  was  not  sutiicicntiy  cirtain,  and  -in  effect  was 
nothing  more  than  a  negative  pregnant;  his  iionour,  the  presiding  judge,  being  of  that 
opinion,  arrested  tlie  judgment,  whereupon,  Taylor,  Chief  Justice,  said:  "The  objection 
taken  in  arrest  of  judgment,  is  founded  on  tlie  assumption  that  the  only  material  inquiry 
before  the  jutsice,  whether  Noble  had  assaulted  Mumford  or  not,  on  the  day  specified,  and 
that  whether  he  struck  him  on  the  back  or  not  at  the  last  wrestle,  was  irrelevant  and  un- 
connected with  that  question;  that  the  assignment  of  perjury  in  the  circumstances,  is  con- 
sistent with  the  belief  that  the  defendant  might  have  sworn  truly  as  to  the  principal  fact, 
VIZ.  the  assault.  7'his  presents  two  questions,  whether  the  materiality  of  the  inquiry  is 
sufficiently  stated  in  the  indictment,  and  whether  the  assignment  of  perjury  is  properly 
und  distinctly  made? 

"  It  is  laid  down  as  a  rule,  which  I  found  nowhere  controverted,  that  it  should  appear  on 
the  face  of  the  indictment  that  the  oath  taken  was  material  to  the  question  depending,  not 
by  setting  forth  the  circumstances  which  render  it  so  in  describing  the  proceedings  of  a 
former  trial,  but  by  a  general  allegation  that  the  particular  question  became  material.  In 
Aylett's  case,  a  leading  one  on  this  subject,  it  is  stated  that  it  became  a  material  question 
on  the  liearing  of  the  cdinpLlint,  and  the  hearing  of  that  is  stated  in  general  terms;  (1 
Term  Rep.  66).  in  the  King  v.  Dowlin,  the  question  was  much  debated  ;  it  is  there  stated 
that  the  question  became  material  on  the  trial,  in  the  same  general  terms  that  it  is  stated 
here,  and  the  trial  is  referred  to  in  this  manner,  that  '  at  such  a  court  J.  R.  was  in  due  form 
of  law  tried  upon  a  certain  indictment,  then  and  there  depending  against  him  for  murder.' 
Dowlin  was  a  witness  against  J.  R.  on  that  trial,  and  the  perjui-y  was  assigned  in  his 
swearing,  that  'he  had  never  said  that  he  would  be  revenged  of  the  said  J.  R.  and  would 
work  his  ruin.'  On  this  part  of  the  case  it  was  argued  on  behalf  of  Dowlin,  that  all  those 
fiicts  ought  to  be  stated  in  the  proceedings  against  J.  R.  which  were  necessary  to  show 
that  the  jurisdiction  was  competent,  that  there  was  something  to  be  tried  ;  the  materiality 
of  the  question  to  that  point,  and  the  falsity  of  the  oath.  This  objection  is  thus  directly 
met  by  Lord  Kenyon  :  '  But  it  has  been  objected  that  it  was  necessary  to  set  forth  in  the 
indictment,  so  much  of  the  proceedings  of  the  former  trial,  as  will  show  the  materiality  of 
the  question  on  which  the  perjury  is  assigned.  If  it  were  necessary,  and  if  the  question 
arose  on  the  credit  due  to  the  witness,  the  whole  of  the  evidence  given  before  must  be  set 
forth  ;  but  that  has  never  been  held  to  be  necessary,  it  always  having  been  adjudged  to  be 
sufficient  to  allege  generally,  that  the  particular  question  became  a  material  question.  But 
here  it  is  averred,  tliat  the  (juestion  on  which  perjury  was  assigned  was  a  material  question; 
tlic  jury  have  found  it  so  by  their  verdict;'  (f)  Term  Re[).  31!)). 

"In  this  indictment,  the  warrant  and  examination  bel'ore  the  magistrate  arc  stated,  and 
tlie  general  allegation  of  the  materiality  of  the  fjuestiorr,  is  in  conformity  with  the  best  forms, 
and  considered  in  reference  to  the  statute  on  this  subject  (Rev.  ch.  383),  a|)pears  to  me 
unexceptionable. 

"The  matter  sworn  to  by  the  defendant;,  is  contradicted  in  the  assignment  of  perjury, 
specially  and  particularly,  and  in  the  words  in  which  it  was  sworn.  A  general  averment 
upon  the  whole  matter  that  the  defendant  fal.scly  swore,  is  not  sulfrcient  ;  it  should  be  spe- 
cific and  distinct,  to  the  end  that  the  defi  ridant  may  have  notice  of  what  he  is  to  come 
prepared  to  defend;  (2  M.  &.  S.  3K'5).  And  the  whole  matter  of  the  defindant's  fiilse  tes- 
liinony  must  be  set  forth,  and  if  the  least  part  of  one  entire  assignment  be  uni)roved,  she 
(•ij\M  not  be  convicted.  The  olTence  charged  consists  in  the  whole  and  not  in  any  one  part 
of  tlie  assignment.  And  this,  in  my  opinion,  obviates  the  necessity  of  any  opinion  as  to 
how  far  perjury  may  be  committed,  if  the  false  oath  has  a  tendency  to  prove  or  disprove 
the  matter  in  issue,  although  but  circumstantially;  or  how  far  the  fact  sworn  to,  though 
not  material  to  the  issue,  must  have  such  a  coimexion  with  the  principal  fiiet,  us  to  give 
weight  to  the  testimony  on  that  point.  These  views  of  the  subject  could  in  this  ease,  only 
be  properly  presented  to  the  court  trying  tlio  cause.     1  think  the  conviction  is  right." 


PEUJURY.  307 

lier  oath  aforesaid,  toucliing  and  concerning  tlie  alleged  assault  by  the 
said  A.  N.  in  and  upon  the  said  il.  M.,  certain  questions  then  and  there 
l^ecanie  and  were  material,  that  is  to  say,  whether  A.  N.  did  strike  her 
husband  H.  M.  with  a  stick  across  the  back  at  the  last  time  he  and  V.  P. 
wrestled,  and  whether  the  blow  across  the  back  with  a  stick,  was  given 
immediately  as  he  fell.  And  the  jurors,  &c.,  do  further  present,  that  tlie 
said  K.  M.  wickedly  devising  and  intending  unjustly  to  aggrieve  the 
said  A.  N.  and  procure  him  to  be  imprisoned,  and  kept  in  prison  for 
alongspaceoftime,on,&c.,at,&c.,  before  the  said  H.  M'K.  then  being, 
&:c.,  she  the  said  K.  M.  did  then  and  there  take  her  coi-^oral  oath  and 
was  sworn  upon  the  holy  gospel  of  God  before  the  said  H.  M'K.,  justice, 
&c.,  he  the  said  H.  M'K.  then  and  there  having  sufficient  and  competent 
power  and  authority  to  administer  an  oath  to  the  said  K.  M.  in  that  be- 
half, and  that  the  said  K.  M.  not  having,  &,c.,  but  being  moved,  &c., 
then  and  there  before  the  said  H.  M'K.,  justice,  &c.,  upon  her  oatli,  &c., 
falsely,  &c.,  did  depose,  say,  swear,  give  and  make  information,  among 
other  things,  in  substance  and  to  the  effect  following,  that  is  to  say,  thai 
N.  (meaning  the  said  A.  N.),  did  strike  her  husband  H.  M.  with  a  stick 
across  the  back,  at  the  last  time  he  (meaning  the  said  H.  M.)  and  V. 
P.  (meaning  a  certain  V.  P.),  wrestled,  and  the  blow  (meaning  the 
blow  with  the  stick  across  the  back  of  the  said  H.  M.),  was  given  im- 
mediately as  they  (meaning  the  said  H.  M.  and  the  said  V.  P.),  fell, 
whereas  in  truth  and  in  fact,  the  said  A.  N.  did  not  strike  her  husband 
H.  M.  with  a  stick  across  the  back,  at  the  last  time  he  the  said  H.  M. 
and  V.  P.  wrestled,  and  whereas  in  truth  and  fact  the  blow  was  not 
given  as  they  (the  said  H.  M.  and  the  said  V.  P.),  fell.  And  so  the 
jurors  aforesaid,  &c.,  &c. 

In  false  sivearivg  bij  a  person  ojfering  to  vole,  as  to  his  qiuil if. cations  when 
challenged.  {() 

That  on,  &c.,  at  an  annual  election  held  at  the  town  of  Porter,  in  the 
County  of  Niagara,  for  the  choice  of  a  senator  from  the  eighth  sena- 
torial district  of  the  State  of  New  York,  one  member  of  assembly 
and  a  sheriff  for  said  county  and  four  justices  of  the  peace  for  the 
town  of  Porter,  held  pursuant  to  the  constitution  and  laws  of  the  state 
before  the  board  of  inspectors  of  the  said  election  tlien  sitting  at  the 
house  of,  &c.,  in  the  town  of  Porter,  which  said  board  being  then  and 
there  legally  constituted  and  organized  according  to  law  to  receive  all 
legal  or  lawful  votes  or  ballots  lor  said  officers  to  be  elected  as  afore- 
said, R.  C,  &c.,  appeared  before  the  board  and  offered  his  vote  or  ballots 
for  some  or  all  of  said  officers,  whereupon,  before  his  vote  or  ballots 
were  given  in,  he  was  duly  challenged  touching  his  right  or  legal 
ability  to  vote  at  said  election  for  the  said  officers  or  either  of  them, 
and  on  being  challenged  he  was  then  and  there  duly  sworn  and  did 
take  his  corporal  oath  before  the  said  board  so  constituted  and  sitting  as 
aforesaid,  the  said  board  being  then  and  there  duly  autliorized  and 
empowered  to  administer  an  oath  to  the  said  R.  C.  in  that  behalf^;  and  he 

(0  Campbell  v.  People,  8  Wond.  G.TG.  I  have  Keen  unalde  to  obtain  the  record  in  this 
cast,  but  tlic  report  appears  to  gwQ  Ike  substantial  averments  of  the  iiidiclrneiit. 


SOS  OFFEN'CES  AGAINST   SOCIETY. 

the  said  R.  C,  being  then  and  there  sworn  by  and  before  said  board, 
and  not  regarding  the  laws  of  the  state,  &c.,did  then  and  there  falsely, 
wilfully  and  corruptly  say,  depose  and  swear  to  and  before  the  board 
aforesaid,  touching  his  right  to  vote  and  his  qualifications  as  a  voter 
at  said  election  for  the  officers  aforesaid,  "in  substance  and  effect  as 
follows,  among  other  things,  that  is  to  say,  that  he  the  said  R.  C.  was 
a  natural  born  or  a  naturalized  citizen  of  the  State  of  New  York,  or 
one  of  the  United  States  of  America  ;  whereas  in  truth  and  in  fact,  lie 
the  said  R.  C.  was  not  a  natural  born  or  naturalized  citizen  of  the 
State  of  New  York,  or  one  of  the  United  States  of  America;  and  so 
the  jurors  aforesaid  say  that  the  said.  R.  C.  on,  &c,,  did  commit  wilful 
and  corrupt  perjury,"  &c. 

Ill  an  affidavit  to  hold  to  hail,  infahehj  swearing  to  a  debt.{ii) 

That  A.  B.,  of,  &c.,  wickedly  and  maliciously  contriving  and  in- 
tending one  C.  D.  unlawfully  to  aggrieve  and  oppress,  and  the  said 
C.  D.  to  great  expense  of  his  moneys,  wickedly  and  maliciously  to 
})ut  and  bring,  and  also  to  cause  the  sum  of  -,to  be  endorsed 

upon  a  process  of  the  court  of  by  virtue  of  which  the  said  C,  D. 

might  be  arrested  to  answer  in  the  same  court,  at  the  suit  of  E.  F., 
with  intent  that  the  said  C.  D.  should  be  compelled  to  find  bail  for  the 
aforesaid  sum  of  on,  &c.,  at,  &c.,  came  in  his  proper  person  be- 

fore G.  H.,  Esq.,  then  being  one  of  the  justices  of  said  court;  and 
then  and  there  in  due  form  of  law  was  sworn,  and  did  take  his  oath 
before  the  said  G.  H.,  Esq.,  one  of  the  justices  of  the- said  court  as 
aforesaid  (he  the  said  G,  H.  then  and  there  having  sufficient  and  com- 
petent authority  and  power  to  administer  an  oath  to  the  said  C.  D.  in 
that  behalf),  and  that  the  said  C.  D.  being  so  sworn  as  aforesaid, 
then  and  there,  before  the  said  G.  H.,Esq.,  upon  his  oath  aforesaid, 
falsely,  wickedly,  wilfully  and  corruptly  did  say,  depose,  swear  and 
make  affidavit  in  writing  (among  other  things),  in  substance  and  to 
the  effect  following,  that  is  to  say,  {here  inseri  thai  part  of  the  affidavit 
that  is  false),  as  by  the  same  affidavit  now  filed  in  the  court  aforesaid, 
more  fully  appears  ;  whereas  in  truth  and  in  fact,  the  said  C.  D.  {here 
negative  the  facts  alleged  as  false).  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  C.  D.,  in  manner  and 
form  aforesaid,  did  commit  wilful  and  corrupt  perjury,  against,  &c., 
and  contrary,  «SiC.     {Conclude  as  in  book  1,  chap.  3). 

For  false  sn^earing  to  an  affidavit  in  a  civil  cause,  in  which  the  defend- 
ant swore  that  the  arrest  rras  illegal,  (\j-c.  The  perjvri/  in  this  case  is 
for  swearing  to  what  the  defendant  did  not  know  to  be  true.{o) 

That  before  the  making  of  the  affidavit  in  this  count  mentioned,  to 
wit,  on,  &c.,  a  certain  judgment  was  signed  in  her  said  majesty's 

(w)  Altered  by  Mr.  Davis,  Prcc.  200,  from  2  Chit.  C.  L.  323. 

(»)  R.  V.  Newton,  1  C.  /t  K.  46f).  Tlic  dcfcndnrit  was  acquitted,  but  as  this  is  the  only 
precedent  that  has  been  jrivcii  in  the  books,  of  fliisc  swearinir,  not  of  wliat  the  defendant 
knows  to  bo  false,  but  of  what  he  docs  not  know  to  be  true,  it  is  here  piihlishcd. 

"On  this  |)oirit,"  says  the  reporter,  in  a  inarj^rinal  note,  "it  is  laid  down  by  Lord  Coke,  3 
Inst.  IGG,  that  tlie   law    tukeUi  a  diversity  between  falsehood  in  express  words,  and  that  it 


PERJURY. 


309 


saul  Court  of  Exchequer  at  Westminster  aforesaid,  in  a  certain  canse 
wherein  ihe  said  E.  II.  was  plaintiff,  and  the  said  A.  N.  defendant, 
whereby  it  was  considered  by  the  said  Court  of  Exchequer,  that  the 
said  E.  If.  sliould  recover  against  the  said  A.  N.,  as  well  a  certain 
debt  as  also  certain  damages  and  costs,  as  by  the  record  thereof  still 
remaining  in  the  said  Court  of  Exchequer  at  Westminster,  more  fully 
appears.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  lur- 
ther  present,  that  after  the  signing  of  the  said  last  mentioned  judgment, 
and  before  and  at  the  time  of  making  of  the  arrest  in  this  count  men- 
tioned, to  wit,  on,  &c.,  at,  &c.,  the  said  A.  N.  was  tlie  occupier  of  and 
did  dwell  in  a  certain  dwelling  house  there  situate,  and  that  there 
then  and  there  was  a  certain  outer  door  at  the  back  of  the  same 
dwelling  house,  and  that,  shortly  before  the  making  of  the  arrest  in 
this  count  mentioned,  to  wit,  on  the  day  and  year  last  aforesaid,  at 

is  only  within  this  statute  (5  Eliz.  c.  9),  and  falsehood  in  knowledge  or  mind,  which  may 
be  punished,  thoiigli  t!ie  words  be  true.  For  example,  damages  were  awarded  totlie  plain- 
tiit'in  tiie  Star  Chamber  according  to  the  value  of  liis  goods  riotously  taken  away  by  the 
defendant.  The  plaintiff  caused  two  men  to  swear  the  v;ilue  of  his  goods  that  never  saw 
noi'  knew  them  ;  and  though  that  which  lliey  swear  was  true,  yet  because  they  knew  it 
not,  it  was  a  false  oath  in  them,  for  wiiich  both  the  prosecutor  and  the  witnesses  were 
sentenced  in  the  Star  Chamber;  Gurncis'  case,  Star  Chamber,  Mich.  9,  Jac.  I.,  and  herewith 
agreeth  Bracton,  lib;  4,  fol.  289,  that  a  man  may  swear  the  truth  and  yet  be  perjured.  Dicunt 
quidam  verum  et  inenliuntar  et  perjerant  co  quod  contra  mentum  vadunt,  ut  si  Judeus 
juiaverit  Christum  nutum  ex  virgine  perjurium  comiiiitlil  quia  contra  mentem  tadit  quia 
nan  credit  ila  esse  ut  jurat.'' 

"  In  Oakley  and  Whitlesby's  case,  in  K.  B.  20,  Jac.  I.;  Palmer's  Rep.  294;  it  was  re- 
solved, that  it  is  a  misdemeanor  and  perjuiy  at  common  law  ibr  one  to  swear  without  his 
knowledge,  although  it  may  be  true;  and  in  2  Roll.  Abr.  77,  pi.  5,  where  this  case  is 
abridged,  it. is  laid  down  that  this  is  a  false  oath,  punishable  at  common  law,  although  it 
may  not  be  within  the  statute  (5  Eliz.  c.  9).  In  the  case  of  Allen  v.  Westly,  in  C.  P.  4,  Car.  I., 
Hetley's  Rep.  97,  it  is  stated  that  in  Style's  case,  it  was  agreed  by  the  court '  that  although 
a  witness  swears  the  truth,  yet,  if  itbe  jiot  truth  of  his  own  knowledge,  as  if  he  shows  how 
one  revoked  a  will  by  parol  in  his  hearing,  when  the  words  were  spoken  to  another  in  his 
absence,  he  does  not  swear  truly,  and  it  is  a  corrupt  oath  within  the  statute.' 

"  But  in  the  case  of  Rex  v.  Hinton,  3  Mod.  122,  in  K.  B.  2  and  3  Jac.  11.,  the  court  says 
that  '  tlicre  is  a  difference  where  a  man  swears  a  tiling  which  is  true  in  fact  and  yet  he 
dotii  not  know  it  to  be  so,  and  to  swear  a  thing  to  be  true  which  is  really  false  ;  the  first 

"Mr.  Serjreant  Russell  says  (Russ.  on  Cr.  and  Alisd.  1st  ed.  vol.  ii.  p.  1754,  and  Mr.  Greave's 
is  perjury  before  God,  the  other  is  an  offence  of  which  tiie  law  takes  notice.' 
ed,  vol,  ii.  p.  597),  'with  respect  to  the  falsity  of  the  oath,  it  should  be  observed,  that  it  has 
been  considered  not  to  be  material  wiiether  the  fact  which  is  sworn  be  in  itself  true  or  false, 
for  liowsoevcr  the  thing  sworn  may  happen  to  prove  agreeable  to  tlie  truth  or  not,  yet, 
if  it  were  not  known  to  be  so  by  him  who  svvears  it,  his  offence  is  altogether  as  great  as 
if  it  had  been  false,  inasnipch  as  he  wilfully  swears  that  he  knows  a  thing  to  be  true, 
wliich  at  the  same  time  Ihe  knows  nothing  of  and  impudently  cndeavouis  to  induce  those 
before  whom  he  swears  to  proceed  upon  the  credit  of  a  deposition,  which  any  stranger 
might  take  as  well  as  he,'  and  for  this  the  learned  sergeant  cites  1  Hawk.  P.  C.  c.  69,  s.  6, 
(1  Curw.  Hawk.  b.  1,  c.  27,  s,  6),  and  the  case  of  Rex  v.  Edwards,  coram  Adams  B., 
Siirewsbury  Lent  Assizes  1764,  and  subsequently  considered  by  the  judges  (MS).  And  in 
the  case  of  Rex?).  Mawbey,  6  T.  R.  619,  which  was  an  indictment  for  a  conspiracy  toper- 
vert  the  course  of  justice  by  producing  in  ev'idence  a  false  ccrtiticnte  of  magistrates,  that  a 
road  was  in  reiiair,  Mr.  Justice  Lawrence  said,  '  It  is  not  necessary  that  the  defendants 
should  have  known  tiiat  the  road  was  out  of  repair;  they  arc  charged  with  conspiring  to 
j;ervert  the  course  of  justice  by  producing  in  evidence  a  certificate  that  the  road  was  in 
re[)air,  and  if  the  charge  be  established  in  fact,  it  is  an  offence  of  considerable  magnitude 
ngainst  the  administration  of  the  justice  of  the  country.  This  is  not  unlike  the  case  of 
perjury  wiicro  a  man  swears  to  a  particular  fact  witiiout  knowing  at  the  time  whether  the 
tiiel  be  true  or  false  ;  it  is  as  much  perjury  as  if  he  knew  the  fact  to  be  filse  and  equally  in- 
diclable.'  We  are  not  aware  of  any  form  of  indictment  in  the  printed  collections  lor  pci- 
jury,  in  swearing  that  w  liich  the  party  did  not  know  to  be  true." 


310 


OFFEVCES  AGALVST  SOCIETV. 


the  parish  last  aforesaid,  in  the  County  of  Gloucester  aforesaid,  llie 
said  G.  VV.  went  to  the  sanrie  dwelling  house  for  the  purpose  of  arrest- 
ing the  said  A.  N.,  and  did  then  and  there  arrest  the  said  A.  N.  in  the 
same  dwelling  house,  under  and  by  virtue  of  a  certain  other  writ  of 
our  said  lady  the  queen,  commonly  called  a  capias  ad  satisfaciendum, 
before  then  issued  out  of  the  said  Court  of  Exchequer  at  Westminster 
aforesaid,  upon  the  said  last  mentioned  judgment.  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid  do  further  present,  that  the  said 
A.  N.  was  kept  and  detained  in  the  said  custody  of  the  said  sheriff 
of  the  said  County  of  Gloucester,  under  and  by  virtue  of  the  said  last 
mentioned  writ,  from  the  time  of  making  of  the  said  last  mentioned 
arrest,  until  and  at  and  after  the  time  of  the  making  of  the  affidavit 
in  this  count  hereafter  mentioned,  to  wit,  at  the  parish  of  Cheltenham 
aforesaid,  in  the  County  of  Gloucester  aforesaid.  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that  the  said 
A.  N.,  contriving  and  maliciously  intending  to  injure  the  said  E.  H., 
and  to  deprive  him  of  the  means  of  recovering  the  said  debt,  dam- 
ages and  costs  last  aforesaid,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  in 
order  to  obtain  a  certain  other  writ,  commonly  called  a  habeas  corpus, 
by  means  whereof  he  the  said  A.  N.  might  be  discharged  out  of  the 
same  custody  of  the  said  sheriff  of  the  said  County  of  Gloucester,  as 
to  the  said  last  mentioned  execution,  on  the  ground  that  the  said  last 
mentioned  arrest  was  illegal,  did  come  in  his  own  proper  person 
before  R.  G.  W.,  so  being  a  commissioner,  &c.,  [setting  out  authority), 
and  did  then  and  there,  to  wit,  on  the  day  and  year  last  aforesaid,  at 
the  North  Hamlet  last  aforesaid,  in  the  County  of  Gloucester  afore- 
said, produce  to  and  before  the  said  R.  G.  W.,  so  being  such  commis- 
sioner as  aforesaid,  a  certain  affidavit  in  writing  of  him  the  said 
A.  N. ;  and  that  the  said  A.  N.  then  and  there  by  and  before  the  said 
R.  G.  W,,  so  being  such  commissioner  as  aforesaid,  was  duly  sworn 
and  did  take  his  corporal  oath  upon  the  holy  gospel  of  God,  of  and 
concerning  the  truth  of  the  matter  contained  in  the  same  affidavit  (he 
the  said  R.  G.  W.,  then  and  there  having  sufficient  and  competent 
power  and  authority  to  administer  the  same  oath  to  the  said  A.  N. 
in  that  behalf).  And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  at  and  upon  the  making  of  the  same  last 
mentioned  affidavit,  it  then  and  there  became  and  was  a  material 
question,  whether  the  said  A.  N.  then  knew  of  his  own  knowledge 
that,  on  the  occasion  when  the  said  G.  W,  so  went  to  tiic  same  dwell- 
ing house  as  in  this  coimt  mentioned,  the  said  G.  W.  did,  by  great 
force  and  violence,  or  in  any  other. manner  succeed  in  bursting  open 
the  said  outer  door  at  the  back  of  the  same  dwelling  house  ;  and  that 
at  and  upon  the  making  of  the  same  affidavit,  it  then  and  there 
became  and  was  a  materi;il  (juestion,  whether  the  said  A.  N.  then 
knew  of  his  own  knowledge  that  the  said  G.  W.,  on  the  same  occa- 
sion last  aforesaid,  bm-st  open  the  same  door;  and  that  at  and  upon 
the  making  of  the  same  affidavit,  it  then  and  there  became  and  was 
a  material  question,  whether  the  said  A.  N.  then  knew  of  his  own 
knowledge,  that  the  said  G.  W.,  on  the  same  occasion  last  aforesaid, 
did,  by  great  force  and  violence,  or  in  any  other  maimer,  succeed  in 
breaking  away  the  lock-fastenings  of  the  same  door;  and  that  at  and 


PERJURY.  311 

iipoti  the  making  of  the  same  affidavit,  it  then  and  there  became  and 
was  a  material  question,  whether  the  said  A.  N.  tlien  knew  of  his 
own  knowledge,  that  the  said  G.  W.,on  the  same  occasion  last  afore- 
said, did  break  away  the  lock-fastenings  of  the  same  door.     And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that  the 
said  A.  N.  so  being  sworn  as  last  aforesaid,  not  having  the  fear  of 
God  before  his  eyes,  but  being  moved  and  seduced  by  the  instigation 
of  the  devil,  did,  on,  &c.,  at,  &c.,  in,  &c.,  in  and  by  his  said  atiidavit 
last  aforesaid,  upon  his  oath  last  aforesaid,  before  the  said  R.  G.  W., 
so  being  such  commissioner  as  aforesaid,  and  having  such  competent 
power  and  authority  as  aforesaid,  falsely,  corruptly,  knowingly,  wil- 
fully and  maliciously  depose  and  swear,  amongst  other  things,  in  sub- 
stance and  to  the  effect  following,  that  is  to  say,  that  he  (meaning  the 
said  G.  W.),  then  went  round  to  the  door  of  the  back-kitchen  of  this 
deponent's  (meaning  the  said  A.  N.'s)  dwelling  house,  (meaning  the 
same  dwelling  house  as  aforesaid),  which  is  the  only  outer  door  of 
the  same,  and  had  been  locked  and  well  secured  all  the  said  day,  and 
the  key  kept  by  deponent's  (meaning  the  said  A.  N.'s)  said  wife ; 
and  that  by  great  force  and  violence,  the  said  G.  W.  (meaning  the 
said  G.  W.),  succeeded  in  breaking  away  the  lock-fastenings  of  the 
said  outer  door,  and  in  bursting  open  the  said  outer  door  ;^  thereby 
meaning  that  he  the  said  A.  N.  knew  of  his  own  knowledge,  at  the 
lime  of  the  making  of  the  same  last  mentioned  affidavit,  that  the  said 
G.  W.  did,  on  the  occasion  aforesaid,  when  the  said  G.  W.  went  to 
tiie  same  dwelling  house,  as  in  this  count  aforesaid,  by  great  force 
and  violence,  succeed  in  breaking  away  the  lock-fastenings  of  the  said 
outer  door  at  the  back  of  the  same  dwelling  house,  and  in  bursting 
open  the  same  outer  door ;  and  that  the  said  G.  W.  did,  on  the  same 
occasion,  break  away  the  same  fastenings  and  burst  open  the  same 
door;  whereas  in  truth  and  in  fact,  the  said  A.  N.  did  not  at  the  time 
of  making  the  said  last  mentioned  affidavit,  or  at  any  other  time,  know 
of  his  own  knowledge  that  the  said  G.  W.,  on  the  same  occasion  last 
aforesaid,  did  by  great  force  and  violence,  or  in  any  other  manner, 
succeed  in  breaking  away  the  same  lock-fastenings  of  the  same  outer 
door.     And  whereas  in  truth  and  in  fact,  the  said  A.  N.  did  not,  at 
the  time  of  making  the  said  last  mentioned  affidavit,  or  at  any  other 
time,  know  of  his  own  knowledge,  that  on  the  same  occasion  last 
aforesaid,  the  said  G.  W.  did  by  great  force  and  violence,  or  in  any 
other  manner,  succeed  in  bursting  open  the  same  outer  door  of  the 
same  dwelling  house.     And  whereas,  in  truth  and  in  fact,  the  said 
A.  N.  did  not,  at  the  time  of  the  making  of  the  said   last  men- 
tioned affidavit,  or  at  any  other  time,  'know  of  his  own  knowledge, 
that  the-  said  G.  W.  did,  on  the  same  .occasion  last  aforesaid,  break 
away  the  same  fastenings  of  the  same  outer  door.    And  whereas,  in 
triUh  and  in  fact,  the  said  A.  N.  did  not,  at  the  time  of  the  making  of 
the  said  last  mentioned  affidavit,  or  at  any  other  time,  know  of  his 
own  knowledge,  that  the  said  G.  W.  did,  on  the  occasion  last  afore- 
said, burst  open  the  same  outer  door.    And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  all  the  said  several  mat- 
ters and  things  so  alleged  to  have  been  falsely  sworn  by  the  said  A. 
N.,  as  in  this  count  aforesaid,  were  and  each  of  them  was  material 


312  OFFEXCES  AGAIXST  SOCIETY. 

for  obtaining  tlic  said  last  mentioned  writ  of  habeas  corpus,  and  for 
obtaining  the  discharge  of  the  said  A.  N.  from  tiie  said  last  mentioned 
custody  of  the  said  sheriff  of  the  said  County  of  Gloucester,  to  wit,  nt 
the  parish  of  Cheltenham  aforesaid,  in  the  said  County  of  Gloucester. 
And  so  the  jurors  aforesaid  upon  their  oath  aforesaid,  do  say,  that  tiie 
said  A.  N.,  on  the  said,  &c.,  before  the  said  R.  G.  W.,  so  being  such 
commissioner  as  aforesaid,  and  so  having  such  competent  power  and 
authority  as  aforesaid,  by  his  own  act  and  consent,  and  of  his  own 
most  wicked  and  corrupt  mind,  in  manner  and  form  last  aforesaid, 
did  commit  wilful  and  corrupt  perjury,  to  the  great  displeasiu'e  of 
Almighty  God,  in  contempt  of  our  said  lady  the  queen,  and  against, 
&.C.     (Conclude  as  in  book  1,  chap.  3). 

For  'perjury,  in  an  answer  sworn  to  before  a  master  in  chancery. (ir) 

That  C.  D.  of,  &c.,  heretofore,  to  wit,  on,  &c.,  at,  &c.,  did  exhibit  his 
bill  of  complaint  in  writing,  against  one  E.  F.  therein  described,  of 
said  B.,  yeoman,  in  the  Supreme  Judicial  Court  of  this  common- 
wealth, begun  and  held  at  W,,  within  and  for  the  County  of  W.,  on 
the  Tuesday  of  in  the  year  of,  &c. ;  and  the  said  C.  D.,  in 

and  by  his  said  bill  of  complaint,  among  other  things,,  stated  and 
alleged  in  substance,  and  to  the  effect  following,  to  wit,  (here  insert 
thctt  part  of  the  bill  concerning  ivhich  the  perjury  ivas  committed), 
as  in  and  by  the  said  bill  of  complaint  of  the  said  C.  D.  remaining  filed 
of  record  in  the  said  Supreme  Judicial  Court,  amongst  other  things, 
more  fully  appears.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present,  that  the  said  E.  F.,  the  defendant  in  the  said 
bill  of  complaint,  afterwards,  that  is  to  say,  on  the  day  of,  &c., 

at  said  B.,  in  the  County  of  S.,  did  come  in  his  own  proper  person, 
before  G.  H.,  Esq.,  then  and  there  being  one  of  the  masters  in  chan- 
cery of  the  said  Supreme  Judicial  Court,  and  then  and  there  did  ex- 
hibit and  produce  to  the  said  G.  H.,  Esq.,  the  answer  in  writing  of 
him  the  said  E.  F.  to  the  said  bill  of  complaint  of  the  said  C.  D., 
entitled,  "  the  answer  of  E.  F.,  the  defendant,  to  the  bill  of  complaint 
of  C.  D.,  complainant;"  and  the  said  E.  F.  was  then  and  there  sworn 
in  due  form  of  taw,  and  took  his  corporal  oath,  touching  and  concern- 
ing the  matters  contained  in  his  said  answer  by  and  before  the  said 
G.  H.,  Esq..  he  the  said  G.  H.  so  then  being  one  of  the  masters  in 
chancery  in  the  said  Supreme  Judicial  Court,  and  then  and  there  hav- 
ing suHicient  and  competent  power  and  authority  to  administer  an 
oath  to  the  said  E.  F.  in  that  behalf;  and  that  the  said  E.  F.,  being  so 
sworn  as  aforesaid,  and  being  then  and  there  lawfully  required  to 
declare  and  depose  the  truth  in  a  proceeding  in  a  course  of  justice, 
did,  upon  his  oath  aforesaid,  concerning  the  matters  contained  in  his 
said  answer,  before  the  said  G.  H.,  Esq.,  then  as  aforesaid  being  one 
of  the  masters  in  chancery  of  the  said  Supreme  Judicial  Court,  then 
and  there  swear,  that  so  mitch  of  the  said  answer  of  him  the  said  E. 
F.,  as  related  to  his  own  acts  and  deeds,  was  true ;  and  that  the  said 
E.  F.,  being  so  sworn  as  aforesaid,  intending  unjustly  to  aggrieve  the 

(w)  Allcrcd  by  Mr.  Davis,  Prcc.  20:^,  fiom  2  Cliit.  C.  L.  411. 


PERJURY.  313 

said  C.  D.,the  said  complainant  as  aforesaid,  in  his  answer  aforesaid, 
before  tlie  said  G.  H.,  Esq.,  he  being  then  as  aforesaid  one  of  the  mas- 
ters in  chancery  in  the  said  Supreme  Judicial  Court  (and  having  suf- 
ficient and  competent  authority  as  aforesaid),  falsely,  knowingly, 
wilfully  and  corruptly,  by  his  own  act  and  consent,  upon  his  oath 
aforesaid,  did  answer,  swear  and  affirm,  amongst  other  tilings,  in 
substance  as  follows,  that  is  to  say:  "and  this  defendant  (meaning 
himself  the  said  E.  F.),  says,"  {here  insert  verbatim  that  part  of  the 
answer  relative  to  and  comprising  the  part  in  which  the  perjury  is 
alleged  to  have  been  committed),  as  by  the  said  answer  of  him  the 
said  E.  F.  still  remaining  in  the  Supreme  Judicial  Court  aforesaid,  at 
B.  aforesaid,  in  the  County  of  S.  aforesaid,  amongst  other  things  will 
appear ;  wliereas  in  truth  and  in  fact  {then  go  on  to  negative  the 
answer  i7i  the  ivords  of  it,  and  in  every  part  of  it  lohich  is  alleged 
to  be  false).  And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  say,  that  the  said  E.  F.  falsely  and  wickedly,  wilfully  and  cor- 
ruptly, in  manner  and  form  aforesaid,  did  commit  wilful  and  corrupt 
perjury,  to  the  great  damage  of  him  the  said  C.  D. ;  against,  &c.,  and 
contrary,  &c.    [Conclude  as  in  book  \,  chap.  3). 

Before  a  grand  jury.{x) 

That  heretofore,  to  wit,  at  the  General  Quarter  Sessions  of  the  Peace 
of  our  sovereign  lady  the  queen,  held  at  the  shire  hall  in  Shrewsbury, 
in  and  for  the  County  of  Salop,  on  Monday  in  the  first  week  after  the 
twenty-eighth  day  of  December,  to  wit,  on,  &c.,  before  the  honourable 
T.  K.,  Sir  B.  L.,  baronet,  J.  A,  L.,  Esq.,  and  others  their  associates,  her 
majesty's  justices,  assigned  to  keep  the  peace  in  the  county  aforesaid, 
and  also  to  hear  and  determine  divers  felonies,  trespasses  and  other 
misdemeanors  in  the  same  county  done  and  committed,  a  certain  bill 
of  indictment  against  T.  H.,  late  of  the  parish  of  Whitechurch,  in  the 
County  of  Salop,  labourer,  and  F.  P.,  wife  of  R.  P.,  labourer,  late  of 
the  parish  of  Whitechurch,  in  the  county  aforesaid,  was  then  and 
there  in  due  form  of  law,  exhibited  to  {naming  the  grand  jurors), 
good  and  lawful  men  of  the  said  County  of  Salop,  then  and  there 
sworn  and  charged  to  inquire  for  our  said  lady  the  queen,  and  the 
body  of  the  said  county;  which  said  bill  of  indictment  then  and  there 
was  as  foUoweth,  that  is  to  say  {setting  out  the  indictment  verbatim, 
which  was  against  T.  H.  for  stealing  three  tablecloths,  the  property 
of  R.  H.,  and  against  F.  P.  for  receiving  them  knowing  them  to 
have  been  stolen). 

And  the  jurors  first  aforesaid,  upon  their  oath  aforesaid,  do  further 
present  that,  to  wit,  on,  &c.,  at,  &c.,  and  before  the  said  good  and 
lawful  men,  who  were  so  sworn  and  charged  to  inquire  as  aforesaid, 
had  the  said  bill  of  indictment  exhibited  to  them  as  aforesaid,  and 
before  the  said  good  and  lawful  men  had  inquired  as  by  law  they 
ought  to  do,  touching  the  matters  stated  and  mentioned  in  the  said 
bill  of  indictment,  and  touching  the  truth  of  the  matters  stated  and 
contained  in  the  said  bill  of  indictment,  M.,  the  wife  of  R.  H.,  late  of 

(z)  R.  r.  Hughes,  1  C.  &  K.  519 ;  verdict,  not  guilty. 
27 


314  OFFENCES  AGAINST  SOCIETV. 

the  parish  of  Whitechurch,  m  the  County  of  Salop,  labourer,  appeared 
before  the  Court  of  General  Quarter  Sessions  of  the  Peace  holden  as 
aforesaid,  before  the  said  justices,  and  the  said  others  their  associates 
as  aforesaid,  as  a  witness  in  support  of  the  said  bill  of  indictment, 
and  was  then  and  there,  at  the  said  General  Quarter  Sessions  of  the 
Peace  holden  as  last  aforesaid  before  the  said  justices,  and  the  said 
others  their  associates,  duly  sworn,  and  took  her  corporal  oath,  upon 
the  holy  gospel  of  God,  before  the  said  honourable  T.  K.,  Sir  B.  L., 
baronet,  J.  A.  L.,  Esq.,  and  the  said  others  their  associates,  so  being 
such  justices  as  atbresaid,  at  the  said  General  Quarter  Sessions  of  the 
Peace  holden  as  aforesaid,  that  the  evidence  that  she  the  said  M.  H. 
should  give  before  the  grand  jury  (meaning  before  the  said  good  and 
lawful  men  so  sworn  and  charged  as  aforesaid  to  inquire  as  aforesaid), 
on  the  said  bill  of  indictment,  should  be  the  truth,  the  whole  truth 
and  nothing  but  the  truth  (they  the  said  honourable  T.  K.,  Sir  B.  L., 
baronet,  J.  A.  L.,  Esq.,  and  the  said  others  their  associates  so  being 
such  justices  as  aforesaid,  at  the  said  General  Quarter  Sessions  of  the 
Peace  holden  as  aforesaid,  then  and  there  having  sufficient  and  com- 
petent authority  to  administer  the  said  oath  to  the  said  M.  H.  in  that 
behalf). 

And  the  jurors  first  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  afterwards,  to  wit,  on  the  day  and  year  first  aforesaid, 
at  the  parish  of  St.  Chad,  in  the  borough  of  Shrewsbury,  in  the  said 
County  of  Salop,  the  said  good  and  lawful  men  being  so  sworn  and 
charged  as  aforesaid  to  inquire  as  aforesaid,  did  in  due  form  of  law 
and  according  as  they  were  so  sworn  and  charged  as  aforesaid,  in- 
quire touching  the  matters  and  touching  the  truth  of  the  matters 
stated  and  contained  in  the  said  bill  of  indictmeiit  so  exhibited  to  them 
as  aforesaid. 

And  the  jurors  first  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  upon  the  said  inquiry,  by  and  before  the  said  good  and 
lawful  men  so  as  aforesaid  sworn  and  charged  to  inquire  as  aforesaid, 
it  then  and  there  became  and  was  a  material  question,  whether  three 
tablecloths  which  were  then  and  there  produced  betbre  the  said  good 
and  lawful  men,  were  the  property  of  R.  H.,  the  husband  of  the  said 
M.  H.,  and  that  upon  the  said  inquiry  it  then  and  there  also  became 
and  was  a  material  question,  whether  the  said  three  tablecloths  were 
the  property  of  the  said  T.  H.;  and  that  upon  the  said  inquiry  it  then 
and  there  became  and  was  a  material  (luestion,  whether  the  said  three 
tablecloths  had  at  any  lime  belonged  to  the  mother  of  the  said  M.  H.; 
and  that  upon  the  said  inquiry  it  then  and  there  became  and  was  a 
material  question,  whether  the  said  three  tablecloths  had  at  any  time 
been  the  property  of  the  said  T.  H.;  and  that  upon  the  said  inquiry 
it  then  and  there  became  and  was  a  material  question,  whether  the 
said  three  tablecloths  had  at  any  time  been  the  property  of  the  said 
R.  H. 

Aud  the  jurors  first  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  altervvards,  to  wit,  on  the  day  and  year  first  aforesaid, 
'  at  th«  parish  of  St.  Chad,  in  the  borough  of  Shrewsbury  aforesaid,  in 
the  County  of  Salop,  the  said  M.  II.  being  so  sworn  as  aforesaid,  con- 
triving and  intending  to  pervert  the  due  course  of  justice,  went  before 


PERJURY.  315 

t!ie  said  good  and  lawful  men  so  sworn  and  charged  as  aforesaid  to 
inquire  as  aforesaid,  and  before  the  said  good  and  lawful  men,  upon 
the  said  inquiry  by  and  before  the  said  good  and  lawful  men,  touch- 
ing the  matters  and  touching  the  truth  of  the  matters  stated  and  con- 
tained in  the  said  bill  of  indictment,  and  that  she  the  said  M.  H.,  then 
and  there  upon  her  oath  aforesaid,  falsely,  corruptly,  knowingly,  wil- 
fully and  maliciously,  before  the  said  good  and  lawful  men  so  sworti 
and  charged  as  aforesaid  to  inquire  as  aforesaid,  upon  the  said  inquiry 
did  depose  and  swear  amongst  other  things,  in  substance  and  to  the 
effect  following,  that  is  to  say,  that  the  three  tablecloths  which  were 
then  and  there,  to  wit,  at  the  time  and  place  last  aforesaid  produced, 
then  were  her  son's  (meaning  were  the  property  of  the  said  T.  H.), 
and  that  the  said  tablecloths  had  belonged  to  the  mother  of  the  said 
J\l.  H.,  and  were  to  be  divided  amongst  her  the  Said  M,  II. 's  children, 
of  whom  the  said  T.  H.  was  one ;  whereas  in  truth  and  in  fact,  the 
said  tablecloths  then  were  not  her  the  said  M.  H.'s  son's,  as  she  the 
said  M.  H.  then  and  there  well  knew  ;  and  whereas  in  truth  and  in 
fact,  the  said  tablecloths  were  not  then  the  property  of  the  said  T.  H,, 
as  she  the  said  M.  H.  then  and  there  well  knew;  and  whereas  in 
truth  and  in  fact,  neither  of  the  said  tablecloths  ever  had  been  the 
property  of  the  said  T.  H.;  and  whereas  in  truth  and  in  fact,  the  said 
tablecloths  then  were  the  property  of  the  said  R.  H.,  as  she  the  said 
]M.  H.  then  and  there  well  knew ;  and  whereas  in  truth  and  in  fact, 
the  said  tabledoths  and  each  of  them  were,  at  the  time  last  aforesaid, 
and  for  twenty  years  and  more  before  that  time,  the  property  of  the 
said  R,  H.,  as  she  the  said  M.  H.  then  and  there  well  knew ;  and 
whereas  in  truth  and  in  fact,  the  said  tablecloths  never  did  belong  to 
the  mother  of  the  said  M.  H.,  as  she  the  -said  M.  H.  then  and  there 
well  knew;  and  whereas  in  truth  and  in  fact,  the  said  tablecloths 
were  not  to  be  divided  amongst  the  children  of  the  said  M.  H. ;  and 
whereas  in  truth  and  in  fact,  the  mother  of  the  said  M.  H.  was  a 
married  woman  at  the  time  of  the  death  of  her  the  said  mother,  and 
had  been  so  for  twenty  years  and  more  before  the  time  of  her  said 
death ;  and  the  said  T.  H.  and  the  other  children  of  the  said  M,  H. 
were  not  born  at  the  time  of  the  decease  of  the  said  M.  H.'s  mother, 
as  she  the  said  M.  H.  then  and  there  well  knew. 

And  so  the  jurors  first  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  on  the  said,  &c.,  at,  &c.,  before  good  cuid  lawful  men  so  sworn 
and  charged  as  aforesaid  to  Inquire  as  aforesaid,  upon  their  inquiry 
aforesaid  touching  the  matters  and  touching  the  truth  of  the  matters 
stated  and  contained  in  the  said  bill  of  indictment,  by  her  own  act 
and  consent,  and  of  her  own  most  wicked  and  corrupt  mind,  in  man- 
ner and  form  aforesaid,  falsely,  wickedly,  wilfully  and  corruptly  did 
commit  wilful  and  corrupt  perjury,  in  contempt  of  our  lady  the  queen 
and  her  laws,  to  the  evil  example  of  all  others  in  like  case  offending, 
against,  &c.,  and  against,  &c.     {Conclude  as  iji  book  1,  chap.  3). 


316  OFFENCES  a(;ai\st  society. 

In  ansirer  to  interi-ogatories  exhibited  in  chancery.{y) 

That  one  C.  D.  heretofore,  to  wit,  on  did  exhibit  certain  in- 

terrogatories, in  writing,  in  the  Snpreme  Jndicial  Conrt  of  this  com- 
monwealth begnn  and  holden  at  B.,  within  and  for  the  Connty  of  S., 
on,  &.C.,  in  a  certain  case  before  that  time  commenced  by  bill  of  com- 
plaint, and  then  pending  and  at  issne  in  the  same  court,  after  certain 
pleadings  and  proceedings  had  been  had  therein ;  in  which  said  suit 
one  E.  F.  was  complainant,'  and  the  said  C.  D.  was  respondent,  in 
order  that  the  said  interrogatories  might  be  administered,  according 
to  the  course  and  practice  of  the  said  com't  in  its  chancery  jurisdiction, 
to  certain  witnesses  to  be  produced,  sworn  and  examined  in  the  said 
cause,  on  the  part  and  behalf  of  the  said  C.  D.,  the  said  defendant 
therein,  touching  and  concerning  a  certain  written  paper,  purporting 
to  contain  an  agreement  for  the  lease  of  a  certain  house  and  premises 
therein  mentioned,  from  the  said  E.  F.  to  the  said  C.  D.;  and  that  it 
became  and  was  a  material  question  in  the  said  cause  between  the 
said  parties,  and  to  be  deposed  to  by  the  said  'witnesses  in  answer  to 
the  said  interrogatories,  whether  the  said  E.  F.  had  declared  that  he 
would  release  the  said  C.  D.  from  the  said  agreement,  or  had  released 
him  from  the  performance  thereof;  and  in  and  by  one  of  the  interro- 
gatories exhibited  as  aforesaid,  the  said  witnesses  were  interrogated 
as  follows,  that  is  to  say,  {here  copy  the  interrogatories  with  neces- 
sary innuendoes).     And  the  jurors  aforesaid  upon  their  oath  afore- 
said, do  further  present,  th:ft  G.  H.  of  in  the  county  of 
yeoman,  and  one  of  the  witnesses  to  whom  the  interrogatories  in  the 
said  cause  were  to  be,  and  were  accordingly,  afterwards,  to  wit,  on, 
Sec,  at,  &c.,  administered,  then  and  there  came  in  his  own  proper 
person  before  the  said  Supreme  Judicial  Court,  and  having  seen  and 
understood  the  said  interrogatories,  so  exhibited  in  the  said  court  as 
aforesaid,  then  and  there,  before  I,  P.,  Esq.,  Chief  Justice  of  the  said 
Supreme  Judicial  Court,  he  the  said  I.  P.,  Esq.,  as  chief  justice  as 
aforesaid,  then  and  there  having  sufficient  and  competent  power  and 
authority  to  administer  an  oath  to  the  said  G.  H.  in  that  behalf,  was 
duly  sworn  before  the  said  court  by  the  said  I.  P.,  Esq.,  chief  justice 
as  aforesaid  ;  and  the  said  G.  H.  then  and  there,  on  his  said  oath  be- 
fore the  said  court,  being  then  and  there  required  to  depose  the  truth 
in  a  proceeding  in  a  course  of  justice,  did  swear  that  he  would  make 
true  answers  to  all  such  questions  as  should  be  asked  him  by  the  said 
court  or  their  order,  upon  the  interrogatories  aforesaid,  at  the  time  of 
his  examination,  and  that  he  would  sj)eak  the  truth,  the  whole  truth 
and  nothing  but  tlie  truth,  without  favour  or  affection  to  the  said  par- 
ties in  the  said  cause;  and  that  the  said  G.  H.  afterwards,  to  wit,  on 
the            day  of            was  duly  examined  in  the  said  court  upon  the 
said  interrogatories;  and  that  the  said  G.  H.  intending  unjustly  to  ag- 
grieve the  said  E.  F.,  the  complainant  aforesaid,  did  then  and  there, 
in  his  answer  to  the  said  fourth   interrogatory,  falsely,  knowingly, 
wiKully  and  corruptly,  by  his  own  act  and  consent,  amongst  other 
things,  answer,  swear  and  afiirm,  in  writing,  as  follows,  that  is  to  say, 

(y)  Altered  l)y  Mr.  Davis,  Free.  20:2,  iVom  2  Cliit.  C.  L.  3IJ7. 


PERJURY.  317 

{here  folate  the  miswer  with  necessary  innuendoes),  as  by  the  said 
answer  of  the  said  G.  11.  to  the  said  fourth  interrogatory  remaining 
filed  in  the  court  aforesaid,  will,  amongst  other  things,  fully  appear; 
whereas,  in  truth  and  in  fact,  {then  go  on  to  negative  the  answer  in 
all  its  parts,  comprehending  lohat  is  alleged  to  he  false).  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said 
G.  H.  then  and  there,  icnowingly,  wickedly,  falsely,  wilfully  and  cor- 
ruptly, in  manner  and  form  aforesaid,  did  commit  wilful  and  corrupt 
jierjury;  against,  &c.,  and  contrary,  &.c.  {Conclude  as  in  book  1, 
chap.  3). 

Perjury  committed  at  a  ivrit  of  triaL{z) 

That  heretofore,  to  wit,  on,  &c.,  a  certain  action  of  debt  for  a  cer- 
tain debt  and  demand,  was  depending  in  the  court  of  our  said  lady 
the  queen,  before  her  justices  at  Durham,  that  is  to  say,  in  our  said 
lady  the  queen's  Court  of  Pleas  at  Durham,  wherein  one  J.  N.  was 
plaintiff,  and  one  F.  S.  was  defendant,  and  wherein  the  sum  of  money 
sought  to  be  recovered  and  endorsed  on  the  writ  of  summons,  did  not 
exceed  twenty  pounds,  and  that  heretofore,  to  wit,  on,  &c.,  at,  &c.,  be- 
fore E.  S.,  Esq., then  and  still  being  sheriff  of  the  said  County  of  Durham, 
a  certain  issue  before  then  joined  between  the  said  J.  N.  and  F.  S.,  in 
the  said  action,  came  on  to  be  tried  in  due  form  of  law  and  according 
to  the  form  of  the  statute  in  such  case  made  and  provided,  and  was 
then  and  there  by  virtue  and  in  pursuance  of  a  writ  of  our  said  lady 
the  queen,  directed  to  the  said  sheriff  of  the  said  County  of  Durham 
in  that  behalf,  in  due  form  of  law- and  according  to  the  form  of  the 
statute  in  such  case  made  and  provided,  duly  tried  before  the  said  E. 
S.,  Esq.,  so  then  being  such  sheriff  as  aforesaid,  and  by  a  jury  of  the 
said  County  of  Durham,  in  that  behalf  duly  summoned,  taken  and 
sv/orn  between  the  parties  aforesaid. 

And  that  upon  the  said  trial  of  the  said  issue,  one  W.  D.,  late  of 
the  parish  of  St.  Aswald,  in  the  said  County  of  Durham,  labourer, 
then  and  there  appeared,  and  was  produced  as  a  witness  for  and  on 
behalf  of  the  said  F.  S.,  and  was  then  and  there  duly  sworn  and  took 
his  corporal  oath  upon  the  holy  gospel  of  God,  before  the  said  E.  S., 
so  then  and  there  being  such  sheriff  as  aforesaid,  that  the  evidence 
which  he  the  said  W.  D.  should  give  to  the  said  sheriff  and  to  the 
said  jury  so  sworn  as  aforesaid,  touching  the  matter  in  question  be- 
tween the  said  parties,  should  be  the  truth,  the  whole  truth  and  noth- 
ing but  the  truth  (he  the  said  E.  S.,  so  then  and  there  being  such 
sheriff  as  aforesaid,  and  then  and  there  having  sufficient  and  compe- 
tent authority  to  administer  the  said  oath  to  the  said  W.  D.  in  that 
behalf) ;  and  that  at  and  upon  the  said  trial  of  the  said  issue  so  joined 
between  the  said  parties  as  aforesaid,  to  wit,  on  the  day  and  year 
first  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  it  then 
and  there  became  and  was  a  material  question,  whether  the  said  F. 
S.  had  paid  to  the  said  J.  N.  divers,  or  any  sums  or  sum  of  money  in 
the  whole  amounting  to  a  large  siun  of  money,  to  wit,  the  sum  of 

(z)  R.  V.  Dunn,  1  C.  &-  K.  730.     The  defendant  was  convicted  and  sentenced. 

27* 


818  OFFENCES  AGAINST  SOCIETY. 

nine  ponnds  eighteen  shillings  and  sixpence,  in  full  satisfaction  of  a 
certain  sum  of  money,  to  wit,  the  sum  of  nine  pounds  eighteen  shil- 
lings and  sixpence,  theretofore  due  and  owiiig  from  the  said  F.  S.  to 
the  said  J.  N.,  and  also  whether  the  said  F.  S.  had  paid  or  delivered 
to  the  said  J.  N.  any -sum  or  sums  of  money,  or  any  promissory  note 
or  pi'omissory  notes  in  payment  or  satisfaction,  or  in  part  payment  or 
satisfaction,  of  a  certain  sum  of  money,  to  wit,  the  sum  of  nine  pounds 
eighteen  shillings  and  sixpence,  theretofore  due  and  owing  from  the 
said  F.  S.  to  the  said  J.  N. 

And  that  the  said  W.  D.,  having  been  sworn  as  aforesaid,  not  hav- 
ing the  fear  of  God  before  his  eyes,  not  regarding  the  laws  of  this 
realm,  but  being  moved  and  seduced  by  the  instigation  of  the  devil, 
and  contriving  and  intending  to  prevent  the  due  course  of  law  and 
justice,  and  unjustly  to  aggrieve  the  said  J.  N.,  the  said  plaintiff  in  the 
said  action,  and  to  deprive  him  of  the  benefit  of  the  said  suit  then  in 
question,  and  to  subject  him  to  the  payment  of  sundry  heavy  costs, 
charges  and  expenses,  then  and  there  on  the  said  trial  of  the  said 
issue,  upon  his  oath  aforesaid,  falsely,  corruptly,  knowingly,  wilfully 
and  maliciously,  before  the  said  jurors  so  sworn  to  try  the  said  issue 
as  aforesaid,  and  before  the  said  E.  S.,  Esq.,  so  then  and  there  being, 
such  sheriff  as  aforesaid,  did  depose  and  swear  (amongst  other  things) 
in  substance  and  to  the  effect  following,  that  is  to  say  : 

"  I  saw  S.'s  wife  bring  out  some  money  and  give  it  to  her  husband 
(thereby  meaning  that  the  said  W.  D.  had  seen  the  wife  of  the  said 
F.  S.  bring  out  some  money  and  give  it  to  the  said  F.  S.  her  husband); 
S.  took  the  five  pound  note  and  laid  it  on  the  table  (thereby  meaning 
that  the  said  F.  S.  took  a  promissory  note  for  the  payment  of  five 
pounds,  and  laid  it  on  a  table),  shoved  it  along  (thereby  meaning  that 
the  said  F.  S.  shoved  a  promissory  note  for  the  payment  of  five 
pounds,  along  a  certain  table  to  the  said  J.  N.),  and  said  to  N.  (thereby 
meaning  that  the  said  F.  S.  said  to  the  said  J.  N.),  'Look  at  that' 
(meaning  such  promissory  note  as  aforesaid),  and  also  five  sovereigns 
(thereby  meaning  that  the  said  F.  S.  had  also  shoved  along  the  said 
table  to  the  said  J.  N.  five  pieces  of  the  current  coin  of  the  realm 
called  sovereigns,  of  the  value  of  one  pound  each);  and  the  said  J.  N. 
returned  five  shillings  for  the  good  of  the  company. 

"  It  would  be  near  eleven  o'clock  on  the  Friday  when  we  went 
into  S.'s  house.  This  was  the  week  before  Blanchland  Fair  (thereby 
meaning  a  fair  holden  at  Blanchland  on  the  twenty-fourth  day  of 
August,  in  the  year  eighteen  hundred  and  forty-two)."  He  the  said 
W.  D.,  by  so  deposing  and  swearing  in  manner  aforesaid,  then  and 
there  meaning  that  the  said  F.  S.  had  given  and  delivered  and  paid 
to  the  said  J.  N,  a  promissory  note  for  the  payment  of  five  pounds, 
and  five  pieces  of  the  said  current  coin  called  sovereigns,  as  and  for 
a  payment  in  money,  and  in  payment,  satisfaction  and  discharge  of 
the  said  sum  of  money  so  theretofore  due  and  owing  from  the  said 
F.  S.  to  the  said  J.  N.  as  aforesaid;  and  that  the  said  F.  S.  had  offered 
and  delivered  and  paid  to  the  said  J.  N.  a  promissory  note  for  the 
payment  of  five  pounds  and  five  pieces  of  the  said  current  coin  called 
sovereigns,  as  and  for  a  paym(;nt  in  money;  and  so  that,  by  moans 
thereof  and  by  the  acceptance  by  the  said  J.  N.  of  such  note  and  live 


PERJURY.  319 

pieces  of  the  said  current  coin  called  sovereigns,  and  of  a  competent 
part  thereof  in  value,  to  wit,  nine  pounds  eighteen  shillings  and  six- 
pence, part  thereof,  as  and  for  a  payment  in  money,  and  in  payment, 
satisfaction  and  discharge  of  the  said  sum  of  money  so  heretofore  due 
and  owing  from  the  said  F.  S.  to  the  said  J.  N.  as  aforesaid,  the  same 
sum  of  money  so  theretofore  due  and  owing  from  the  said  F.  S.  to  the 
said  J.  N.  as  aforesaid  might  and  would  be  paid,  satisfied  and  dis- 
charged. 

Wliereas  in  truth  and  in  fact,  the  said  F.  S.  did  not,  on  the  Friday 
in  the  week  before  the  said  Blanchland  Fair  was  so  liolden  as  afore- 
said, shove  a  promissory  note  for  the  payment  of  five  pounds,  along 
a  table  to  the  said  J.  N. ;  and  whereas  in  truth  and  in  fact,  the  said 
F.  S,  did  not  then,  on  the  said  Friday  in  the  said  week  before  the 
said  Blanchland  Fair  was  so  holden,  as  aforesaid,  say  to  the  said  J. 
N.,  "Look  at  that;"  and  whereas  in  truth  and  in  fact  the  said  F.  S. 
did  not,  on  the  said  Friday  in  the  said  week  before  the  said  Blanch- 
land P^air  was  so  holden  as  aforesaid,  shove  along  a  table  to  the  said 
.T.  N.,  five  pieces  of  the  said  current  coin  called  sovereigns;  and 
whereas  in  truth  and  in  fact,  the  said  F.  S,  did  not  give  or  deliver,  or 
pay  then,  or  at  any  other  time,  to  the  said  J.  N.,  a  promissory  note 
for  the  payment  of  five  pounds,  and  five  pieces  of  the  said  current 
coin  called  sovereigns,  as  and  for  a  payment  in  money,  or  otherwise 
in  payment  or  satisfaction  or  discharge  of  the  said  sum  of  money  so 
theretofore  due  and  owing  from  the  said  F.  S.  to  the  said  J.  N.  as 
aforesaid  ;  and  whereas  in  truth  and  in  fact,  the  said  F.  S.  did  not 
then,  or  at  any  other  time,  offer  or  deliver  or  pay  to  the  said  J.  N.,  a 
promissory  note  for  the  payment  of  five  pounds,  and  five  pieces  of 
the  said  current  coin  called  sovereigns,  as  or  for  a  payment  in  money 
or  any  other  promissory  note  or  notes,  or  the  sum  of  nine  pounds 
eighteen  shillings  and  sixpence,  or  any  other  moneys;  so  that  by 
means  thereof,  or  by  acceptance  by  the  said  J.  N.  of  such  promissory 
note,  and  five  pieces  of  current  coin  called  sovereigns,  or  of  any  part 
thereof,  as  or  for  a  payment  in  money  or  otherwise,  or  of  any  such 
other  promissory  note  or  notes  or  moneys,  or  any  part  or  parts  there- 
of, in  payment,  satisfaction  or  discharge  of  the  said  sum  of  money  so 
theretofore  due  and  owing  from  the  said  F.  S.  to  the  said  J.  N.  as 
aforesaid,  or  any  part  thereof,  the  same  sum  of  money  so  due  and 
owing  from  the  said  F.  S.  to  the  said  J.  N.  as  aforesaid,  or  any  part 
thereof,  might  or  could  or  would-be  paid  or  satisfied  or  discharged. 
And  so  the  jurors  aforesaid  do  say,  that  the  said  W.  D.,  on,  &c.,  at, 
(tc,  before  the  said  E.  S.,  Esq.  (so  then  and  there  being  such  sheriff 
as  aforesaid,  and  then  and  there  liaving  such  power  and  authority  as 
aforesaid),  byhis  own  act  and  consent,  and  of  his  own  most  wicked 
and  corrupt  mind,  in  manner  and  form  aforesaid,  falsely,  wickedly, 
knowingly,  wilfully  and  corruptly  did  commit  wilful  and  corrupt 
perjury,  to  the  great  displeasure  of  Almighty  God,  in  contempt  of  our 
lady  the  queen  and  her  laws,  to  the  evil  example,  &:c.,  against,  &:c.. 
and  against,  &.c.     [Conclude  as  in  book  1,  chap.  3). 


S'iO  OFFEN'CES  AGAINST  SOCIETY. 

FdlspJy  charging  the  jnosecutor  icilU  heasiialily  at  a  hearbig  before  a 
justice  of  the  peace.{a) 

That  the  said  R.  G.,  wickedly  and  iriahciously  intending  to  aggrieve 
one  A.  B.,  &c.,  on,  &.C.,  came  before  A,  T.  R.,Esq.,  then  and  yet  being 
one  of  the  justices  of  our  lady  tlie  queen,  assigned  to  keep  the 
peace  of  our  said  lady  the  queen  in  and  for  the  county  aforesaid,  and 
also  to  hear  and  determine  divers  felonies,  trespasses  and  other  mis- 
deeds conmiitted  in  the  said  county,  the  said  A.  T.  R.,  Esq.,  tlien  and 
there  having  a  lawful  power  and  authority  to  administer  the  oath  and 
10  receive  the  information  hereinafter  mentioned,  and  then  and  there 
l)efore  the  said  justice,  was  in  due  Ibrm  of  law  sworn  and  took  his 
corporal  oath  upon  the  holy  gospel  of  God,  the  said  justice  having 
such  lawful  power  and  authority  as  aforesaid  to  administer  the  said 
oath  to  the  said  R.  G.  in  that  behalf,  and  to  receive  the  information 
hereinafter  mentioned,  and  that  the  said  R.  G,  being  so  sworn  as  afore- 
said, not  having  the  fear  of  God  before  his  eyes,  but,  &c.,  then  and 
there  before  the  said  justice  (he,  the  said  justice  having  then  and  there 
the^power  and  authority  as  aforesaid),  falsely, corruptly,  wilfully  and 
maliciously  did  say,  depose,  swear,  charge  and  give  the  said  justice 
to  be  informed,  that  the  said  A.  B.,  upon  a  certain  day,  to  wit,  on  the 
ninth  day  of  July,  in  the  year  aforesaid,  in  the  county  aforesaid,  then 
and  there  had  a  venereal  affair  v/ith  a  certain  animal  called  a  donkey, 
and  that  the  said  A.  B.,  then  and  there,  against  the  order  of  nature, 
carnally  knew  the  said  donkey,  and  tlien  and  there  feloniously  and 
against  tlie  order  of  nature,  did  commit  and  perpetrate  tliat  detestable 
and  abominable  crime  of  buggery  with  the  said  donkey  ;  and  further, 
(it  being  then  and  there  material  to  the  inquiry  into  the  said  charge 
and  information  to  know  the  state  of  the  said  A.  B.'s  dress  at  the  time 
the  alleged  offence  was  so  charged  to  be  committed  as  aforesaid),  that 
the  said  R.  G.  then  and  there  saw  that  the  said  A.  B.,  then  and  there  had 
the  flap  of  his  the  said  A.  B.'s  trowsers  unbuttoned  and  iianging 
down,  and  that  he  the  said  R.  G.  then  and  there  saw  the  inside  of  the 
said  flap ;  whereas  in  truth  and  in  fact,  the  said  R.  G.  did  not  then 
and  there,  or  at  any  time,  or  in  any  place  see  the  said  A.  B.,  nor  was 
the  said  A.  B.  at  any  time  in  the  act  of  having  a  venereal  aflair  with 
a  donkey,  or  with  any  other  animal  whatsoever,  nor  did  the  said  A. 
B.  then,  or  at  any  time,  or  in  any  place,  or  in  any  manner  commit, 

(a)  K.  f.  Gardener,  8  C.  &  P.  737.  An  arrest  of  judgftncnt  was  moved  for  on  tlirce  grounds, 
1st.  That  tJie  indictment  did  not  sufliciently  show  any  judicial  proceeding  pending  before 
the  magistrate,  and  that  it  ought  to  have  averred  in  direct  terms  that  a  charge  was  pending, 
nnd  on  this  point  he  cited  tlic  case  of  Rex  v.  Pearson,  an(p,  j).  321.  2d.  '^I'hat  the  flap  of 
the  trowsers  being  unbuttoned,  or  even  the  existence  of  any  ilap,  did  not  appear  on  the  face 
of  the  itidielnienl  to  Ijc  material,  and  tliat  tiiere  was  no  suflicient  averment  of  materiality ; 
nnd  .'id.  That  tiic  assignment  of  jxTJury  on  tiic  main  charge  was  too  large,  because  it 
denied  all  animals,  all  times  and  all  places,  and  he  submitted  that  although  it  was  not 
necessary  to  prove  every  assignment  of  jjcrjury  contained  in  a  count,  yet  that  the  proof  of 
part  of  any  one  assignment  of  perjury  would  not  be  suflicient.  Mr.  Justice  Patteson  re- 
served the  points  for  the  consideration  of  the  firieen  judges. 

In  the  ensuing  term,  the  case  was  considered  by  the  judges  on  all  tlic  ])oints  made  at 
the  trial,  and  their  lordships  held  tiic  convielinu  riglit,  and  their  lordships  were  unani- 
rnouxly  of  o|iinioti  that  ihi;  indictment  sulliciently  showed  that  there  was  a  legal  proceed- 
ing |)endinir  Ijefitre  tiie  magistrate,  and  tiial  tlie  avermeiil  of  materiality  as  to  the  state  of 
the  dress  was  suineieut. 


PERJURY. 


321 


nor  was  the  said  A.  B.  at  any  time,  or  in  any  place  or  in  any  manner 
in  the  act  of  committing  that  detestable  and  abominable  crime  of 
bnggery.  And  whereas  in  trnth  and  in  fact,  the  said  R.  G.  did  not 
their  and  there  see  the  Hap  of  his  the  said  A.  B.'s  Irowsers  nnbutton- 
ed  or  hanging  down,  nor  was  the  flap  of  the  said  A.  B.'s  trowsers 
then  and  There  nnbnttoned  or  hanging  down  ;  nor  did  the  said  R.  G. 
then  and  there  see  the  inside  of  the  flap  of  the  said  trowsers.  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said 
R.  G.,  on,  &c.,  before  the  said  justices,  then  and  there  having  such 
power  and  authority  as  aforesaid,  by  his  own  act  and  consent  and  of 
his  own  most  wicked  and  corrupt  mind,  in  manner  and  form  aforesaid,^ 
falsely,  wickedly,  wilfully  and  corruptly  did  commit  wilful  and  cor- 
rupt perjury,  to  the  great  displeasure  of  Almighty  God,  in  contempt 
of  our  lady  the  queen  and  her  laws,  to  the  evil  example,  &c.,  and 
against,  &c.     {Conclude  as  in  book  I,  chap.  3). 

Subornation  of  perjury  in  a  prosecution  for  fornication,  Scc.{h) 

That  C.  B.,  late  of  the  said  city,  yeoman,  being  a  wicked  and  evil 
disposed  person,  minding  and  intending  great  injury  to  one  J.  L.,  a 
good  and  valuable  citizen  of  the  said  commonwealth,  and  unjustly  to 
cause  and  procure  him  the  said  J.  L.  to  be  put  to  great  charge  and 
expense  of  his  moneys  and  to  give  security  for  the  maintenance  of  a 
child,  of  which  one  C.  S.,  spinster,  was,  on,  &c.,  pregnant,  and  which 
by  the  laws  of  this  commonwealth  was  likely  to  become  a  bastard, 
did  on  the  same  day  and  year  aforesaid,  at  the  city  aforesaid,  and 
within  the  jurisdiction  of  this  court,  ivnlawfully  and  wickedly  solicit, 
investigate  and  as  much  as  in  him  the  said  C.  B.  lay,  endeavour  to 
persuade  the  said  C.  S.  to  go  before  M.  H.,  Esq.,  then  and  there  being 
one  of  the  aldermen  of  the  City  of  Philadelphia,  and  then  and  there  to 
take  her  corporal  oath  and  swear  before  the  said  JNI.  H.,  Esq.,  (the 
said  M.  H.,  Esq.,  then  and  there  having  sufficient  and  competent  au- 
thority to  administer  the  said  oath  to  the  taid  C.  S.  in  that  behalf), 
among  other  things  in  substance  and  to  effect  following,  that  is  to  say, 
that  J.  L.,  a  seaman,  was  the  father  of  a  bastard  child,  of  which  she 
the  said  C.  was  then  pregnant.  And  the  said  C.  S.  did  accordingly 
and  in  pursuance  of  the  solicitation,  instigation  and  persuasion  of  the 
said  C.  B.,  then  and  there  go  before  the  said  M.  H.,  Esq.,  then  and 
there  being  one  of  the  aldermen  of  the  said  City  of  Philadelphia,  and 
did  then  and  there  take  her  corporal  oath  and  swear  before  the  said 
M.  II.,  Esq.,  (he  the  said  M.  H.,  Esq.,  then  and  there  having  sufficient 
and  competent  power  and  authority  to  administer  the  said  oath  to  the 
said  C.  S.  in  that  behalf),  among  other  things  in  substance  and  to  the 
efi'ect  following,  tliat  is  to  say,  thatshe  the  said  C.  was  then  preg- 
nant with  child,  which  child  when  born  would  be  a  bastard,  and  like 
to  become  chargeable  to  the  public,  and  that  the  aforesaid  J.  L.,  a 
seaman,  was  the  father  of  the  said  child  (when  as  in  truth  and  in 
fact,  he  the  said  C.  B.,  at  the  time  when  he  so  endeavoured  to  per- 
suade, solicit  and  instigate  the  said  C.  S.  to  make  oath  and  swear  as 

(t)  Tliis  iiidiclmeat  was  found  and  sustained  in  Philadclpliia  Quarter  Sessions,  in  1801. 


3'22  OFFEiVCES  AGA1\ST  SOCIETY. 

aforesaid,  then  and  there  well  knew  that  he  the  said  J.  L.  would  be 
put  to  great  charge  and  expense  of  liis  moneys  if  the  said  C.  would 
swear  as  aforesaid  ;  and  whereas  in  truth  and  in  fact,  he  the  said  C. 
B.  at  the  said  time  when  he  so  endeavoured  to  persuade,  solicit  and 
instigate  the  said  C.  S.  to  make  oath  and  swear  as  aforesaid,  had  no 
reasonable  or  probable  cause  whatsoever  to  suspect  or  imagine  that 
the  said  J.  L.  was  the  father  of  such  child,  but  on  the  contrary  thereof 
the  said  C,  B.  was  then  and  there  informed  by  the  said  C.  S,  that  he 
the  said  C.  B.  was  the  father  of  such  child  of  wliich  she  the  said  C. 
was  so  pregnant  as  aforesaid  ;  and  whereas  in  truth  and  in  fact,  she 
the  said  C.  never  told  or  informed  the  said  C,  B.  that  the  said  J.  L. 
was  the  father  of  such  child  ;  and  whereas  in  tru-th  and  in  fact,  he  the 
said  C.  B.  so  wickedly  and  unlawfully  endeavoured  to  persuade,  solicit 
and  instigate  the  said  C.  S.  to  swear  as  aforesaid,  in  order  that  he  the 
said  C.  B.  might  be  exonerated,  lYeed  and  discharged  from  divfers  ex- 
penses which  might  accrue  to  him,  as  being  the  father  of  such  child, 
after  the  same  should  be  born  of  the  body  of  her  the  said  C.  S.,  in 
contempt  of  the  laws  of  this  commonwealth,  to  the  evil  example,  &c., 
contrary,  &c.,  and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Subornation  of  perjunj,  on  a  trial  for  robbery,  ichere  the  prisoner  set 
lip  an  alibi.(c) 

That  at  the  Supreme  Judicial  Court  of  said  commonwealth,  holden 
at,  &c.,  on,  &c.,  before  the  justices  of  said  Supreme  Judicial  Court,  a 
certain  indictment  was  presented  and  returned  in  due  course  of  law 
by  the  grand  jury  for  the  said  county  against  oiie  A.  B.,  in  the  form 
following,  to  wit,  (here  insert  the  indictment) ;  and  that  afterwards 
such  proceedings  were  had,  as  that  the  said  A.  B.  was  duly  and 
legally  arrested  and  brought  into  said  court,  and  being  duly  and 
legally  arraigned  upon  said  indictment,  pleaded  to  the  same  that  he 
was  not  guilty  thereof;  upon  which  issue,  such  proceedings  were  had, 
that  afterwards,  to  wit,  at  the  said  Supreme  Judicial  Court,  so  held 
as  aforesaid,  a  trial  was  had  and  held  by  the  jury  aforesaid,  between 
the  said  commonwealth  and  the  said  A.  B.  upon  the  said  indictment; 
upon  which  said  trial,  evidence  was  given  on  behalf  of  said  common- 
wealth against  the  said 'A.  B.,  that  the  felony  and  robbery,  in  the  said 
indictment  specified  and  charged,  was  committed  by  the  said  A.  B., 
on  at  .     And  the  jurors  aforesaid,  upon  their  oath  afore- 

said, do  further  present,  that  C.  1).,  late  of  being  a  ])erson  of  an 

evil  and  wicked  mind  and  disposition,  and  devising  and  intending  as 
much  as  in  liim  lay,  to  pervert  the  due  course  of  law  and  justice,  and 
to  cause  and  procure  the  said  A.  B.  to  be  entirely  acquitted  of  the 
said  felony  and  robbery  charged  on  him  by  the  said  indictment,  and 
to  escape  unpunished  for  the  sam(;,  did,  before  the  said  trial,  to  wit, 
on  at  unlawfully  and   wickedly  solicit,  incite  and  en- 

deavour to  persuade  one  Vj.  Y.  to  appear  as  a  witness  on  the  said 
trial  so  as  aforesaid  had,  for  and  on  behalf  of  the  said  A.  B.,  and  on 
the  said  trial,  falsely  to  depose,  say  and  give  evidence  upon  his  oath 

(c)  2  Cliit.  C.  P.  478,  47!);  Davis'  Prtc.  220. 


PKRJURy.  323 

to  the  court  and  jury  aforesaid,  that  the  said  A.  B.,  {here  insert  tlie 
evidence  given  by  the  said  E.  F.,  to  jrrove  the  alibi) ;  whereas  in 
truih  and  in  fact,  the  said  E.  F.  did  not,  {here  negative  the  testimony 
given  by  the  said  E.  F.);  and  whereas  in  truth  and  in  fact,  at  the 
time  when  the  said  C.  D.  did  so  sohcit,  invite  and  endeavour  to  per- 
suade tlie  said  E.  F.  to  give  such  evidence  upon  his  oath  as  aforesaid, 
he  the  said  C.  D.  well  knew  that  the  said  E.  F.  would  not  give  his 
evidence  according  to  the  truth,  and  that  the  same  evidence  so  to  be 
given,  was  false,  feigned  and  aUogether  fictitious ;  to  the  evil  example, 
&c.,  against,  &.C.,  and  contrary,  &:c.    {Conclude  as  in  book  1,  chap.  3). 

Suharnaiion  of  perjury  in  an  action  of  irespass.{d) 

That  heretofore,  to  wit,  at,  &c.,  a  certain  issue  was  joined  in  the 
court  of  our  lady  the  queen,  before  the  queen  herself  (the  said  court 
then  and  still  being  holden  at  Westminster,  in  the  County  of  Middle- 
sex), between  one  J.  L.  and  one  J.  W.  in  a  certain  plea  of  trespass 
and  assault,  in  which  the  said  J.  L.  was  plaintiff",  and  the  said  J.  W. 
defendant.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  afterwards  and  before  the  trial  of  the  said  issue 
as  hereinafter  mentioned,  and  whilst  the  same  was  depending,  to  wit, 
on,  &c.,  J.  S.,  late,  &:c.,  not  having  the  fear  of  God  before  his  eyes, 
but,  &c.,  and  wickedly  contriving  and  intending  to  pervert  the  due 
course  of  law  and  justice,  and  wickedly  and  maliciously  contriving 
and  intending  unjustly  to  aggrieve  the  said  J.  L.,  the  plaintiff"  in  the 
said  issue,  and  to  deprive  him  of  the  benefit  of  his  suit  then  in  ques- 
tion, and  to  subject  him  to  the  payment  of  sundry  heavy  costs,  charges 
and  expenses,  then  and  there,  to  wit,  on,  &:c.,  at,  &c.,  unlawfully,  cor- 
ruptly, wickedly  and  maliciously  did  solicit,  suborn,  instigate  and 
endeavour  to  persuade  one  J.  N.  to  be  and  appear  as  a  witness  at  the 
trial  of  the  said  issue,  for  and  on  behalf  of  the  said  J,  VV.  the  defend- 
ant in  the  said  issue,  and  upon  the  said  trial  falsely  to  swear  and  give 
evidence  to  and  before  the  jurorswhich  should  be  sworn  to  try  the 
issue  aforesaid,  certain  matters,  material  and  relevant  to  the  said 
issue,  and  to  the  matters  therein  and  thereby  put  in  issue,  in  substance 
and  to  the  eff"ect  following,  that  is  to  say,  that  (the  said  J.  W.  (mean- 
ing the  defendant  in  the  issue  aforesaid),  did,  on  a  certain  day  then 
past,  to  wit,  on  the  tenth  day  of  April,  in  the  year  aforesaid,  beat, 
wound  and  bruise  the  said  J.  L.,  (meaning  the  plaintiff"  in  the  issue 
aforesaid),  and  did  knock  him  the  said  J.  L.  down,  and  with  a  large 
stick  did  then  and  there  beat,  wound  and  bruise  and  greatly  disfigure 
the  said  J.  L.  whilst  he  was  so  down). 

And  the  jurors  first  aforesaid  upon  their  oath  aforesaid,  do  further 
present,  that  afterwards,  to  wit,  at  the  sittings  at  nisi  prius,  holden 
after  trinity  term  aforesaid  at  Westminster,  in  the  county  atbresaid, 
before  the  right  honourable  T.  L.  D.,  her  majesty's  chief  justice 
assigned  to  hold  pleas  in  the  court  of  our  said  lady  the  queen  before 
the  queen  herself,  to  wit,  on  the  day  and  year  aforesaid  at  Westminst- 
er albresaid,  in  the  county  aforesaid,  the  issue  aforesaid  came  on  to 

(J)  Arch.  C.  P.  5th  Am.  ed.  681. 


324  OFFENCES  agaTnst  society. 

be  tried,  and  was  then  and  tliere  tried  by  a  jury  of  the  country  in  that 
behalf  duly  sworn  and  taken  between  the  parties  aforesaid,  upon 
Avliicli  said  trial  the  said  J.  N.  in  consequence  and  by  means,  encou- 
ragement and  effect  of  the  said  wicked  and  corrupt  subornation  and 
procurement  of  the  said  J.  S.,  did  then  and  there  appear  as  a  witness 
for  and  on  behalf  of  the  said  J.  W.,  the  defendant  in  the  plea  above 
mentioned,  and  was  then  and  there  duly  sworn  and  took  his  corporal 
oath  upon  the  holy  gospel  of  God,  before  the  said  T.  L.  D.,  her 
majesty's  chief  justice  as  aforesaid,  that  the  evidence  which  he,  the 
said  J.  N.  should  give  to  the  court  there,  and  to  the  jury  so  sworn  as 
aforesaid,  touching  the  matter  then  in  question  between  the  said 
parties,  should  be  in  truth,  the  whole  truth  and  nothing  but  the  truth, 
(he  the  said  T.  L.  D.,  chief  justice  as  aforesaid,  then  and  there  having 
sufficient  and  competent  authority  to  administer  the  said  oath  to  the 
said  J.  N.  in  that  behalf),  and  that  at  and  upon  the  trial  of  the  said 
issue  so  joined  between  the  said  parties  as  aforesaid,  it  then  and  there 
became  and  was  a  material  question  whether  the  said  J.  W.  assaulted 
and  beat  the  said  J.  L.,  and  the  said  J.  N.  being  so  sworn  as  aforesaid, 
then  and  there  at  the  trial  of  the  said  issue,  upon  his  oath  aforesaid, 
falsely,  corruptly  and  wilfully,  before  the  said  jurors  so  sworn  and 
taken  between  the  said  parties  as  aforesaid  and  before  the  said  T.  L.  D., 
chief  justice  as  aforesaid,  did  depose  and  swear  (amongst  other  things), 
in  substance  and  to  the  effect  following,  that  is  to  say,  that  {Jiere  set 
out  J.  N.'s  evidence,  in  substance  the  same  as  above  stated  where 
the  subornation  is  charged)  ;  whereas  in  truth  and  in  fact,  the  said 
J.  W.  did  not,  &c.,  [so  proceeding  to  assign  the  perjury  as  in  the 
precedent  ante,  p.  278,  &c.)  \  and  whereas  in  truth  and  in  fact,  the  said 
J.  S.  at  the  time  he  so  solicited,  suborned,  instigated  and  endeavoured  to 
persuade  the  said  J.  N.  falsely  and  corruptly  to  swear  as  aforesaid, 
well  knowing  that,  &c.,  {^pursuing  the  ivords  in  the  assignment  of 
perjury).  And  so  the  jiu'ors  aforesaid,  upon  their  oath  aforesaid,  do 
say,  that  the  said  J.  S.,  on  the  said  third  day  of  July,  in  the  fourth 
year  of  the  reign  aforesaid,  at  the  parish  aforesaid  in  the  county  afore- 
said, did  unlawfully,  corruptly,  wickedly  and  maliciously  suborn, 
and  procure  the  said  J.  N.  to  commit  wilful  and  corrupt  perjury  in 
and  by  his  oath  aforesaid,  before  the  said  jurors  so  sworn  and  taken 
between  the  said  parties  as  aforesaid,  and  before  the  said  T.  L.  D., 
chief  justice  as  aforesaid  (the  said  T.  L.  D.  then  and  there  having 
sufficient  and  competent  power  and  authority  to  administer  the  said 
oath  to  the  said  J.  N.),  to  tlic  great  displeasure  of  .Almighty  God,  the 
evil  and  pernicious  example  of  all  otliers  in  the  like  case  offending, 
and  against,  &:c.     (Conclude  as  in  book  1,  chap.  3). 

Corruptly  endeavouring  toinjiuence  a  witness  in  the  U.  S.  courts.{e) 

That  heretofore,  to  wit,  on,  &c.,  at,  &c.,  a  certain  J.  H.  Y.  was 
bound  in  recognizance  wilii  a  certain  J.  P.  V.  in  the  sum  of  four  thous- 
and dollars,  before  A.  D.  K.  T.,  an  alderman  and  justice  of  the  peace 

{r)  This  indictment  was  drawn  in  1839,  by  John  M.  Read,  Esq.,  then  District  Attorney 
in  I'hiladelpliia,  but  was  never  tried. 


PERJURY,  325 

for  the  County  of  Philadelphia,  conditioned  that  the  said  J.  H.  Y. 
should  personally  appear  at  tlie  next  Circuit  Court  of  the  United  Stales 
of  America,  tor  the  Eastern  District  of  Pennsylvania,  to  be  holden  at 
Philadelphia  in  the  eastern  district  aforesaid,  on  the  eleventh  day  of 
October  in  the  year  aforesaid,  and  then  and  there  to  answer  for  one 
manslaughter  committed  by  the  said  J.  H,  Y.  upon  one  F.  upon  the 
high  seas.  And  the  graud  inquest  aforesaid  do  further  present,  that 
on  the  said  fourth  day  of  September  in  the  year  aforesaid,  at  the  district 
aforesaid,  and  before  the  said  A.  D.  K.  T.,  alderman  and  justice  of  tli.e 
peace  as  aforesaid,  a  certain  T.  P.  was  then  and  there  bound  in  a  re- 
cognizance in  the  sum  of  two  hundred  dollars,  conditioned  that  he  the 
said  T.  P.  sliould  personally  appear  at  the  said  Cncuit  Court  of  the 
United  States  for  the  district  aforesaid,  to  be  holden  as  aforesaid  on 
the  said  eleventh  day  of  October  in  the  year  aforesaid,' and  then 
and  there  givje  evidence  on  behalf  of  the  United  States  of  America, 
against  the  said  J.  H.  Y.,  for  the  said  manslaughter  by  him  the  said 
J.  H.  Y.  committed  upon  the  said  F.  upon  the  high  seas  as  atbresaid. 
And  the  grand  inquest  aforesaid  do  further  present,  that  afterwards, 
to  wit,  on,  &c,,  at,  &c.,  one  J.  P.  V.,  late  of  the  district  aforesaid,  yeo- 
man, did  then  and  there  corruptly  endeavour  to  inliueiice  the  said  T. 
P.,  then  and  there  being  a  witness  as  aforesaid  in  the  said  Circuit 
Court  of  the  United  States  of  America  for  the  eastern  district  aforesaid, 
in  the  discharge  of  his  duties  as  a  witness  as  aforesaid,  contrary,  &c., 
and  against,  &c.     {^Conclude  as  in  book  1,  chap.  3). 

Endeavouring  to  entice  a  witness  to  withdraw  himself  Jrom  the  'prosecu- 
tion of  a  felon.{J^  * 

That  whereas,  a  certain  S.  S.  and  J,  M'K.,late,  &c.,  on,  &c.,  at,  &c., 
were  arrested  and  brought  before  W,  C,  Esq.,  then  one  of  the  justices 
of  this  commonwealth,  the  peace  in  the  said  county  to  keep  assigned, 
the  said  S.  S.  and  J.  M'K.  being  charged  upon  the  oath  of  G.  F.  with 
a  certain  felony  and  robbery  by  them  committed ;  whereupon  the  same 
justice  made  his  warrant  in  writing  under  his  hand  and  seal,  in  due 
form  of  law  directed  to  the  keeper  of  the  gaol. of  the  said  county,  com- 
manding him  to  receive  said  S.  and  J.  into  the  said  gaol,  and  them 
safely  to  keep  until  discharged  by  due  course  of  law,  by  virtue  of 
which  sai'd  warrant  the  said  S.  and  J.  were  committed  to  the  gaol  of 
the  said  county  and  into  the  custody  of  the  keeper  thereof;  and  the 
jurors  aforesaid  upon  their  oaths  and  atfirmations  aforesaid,  do  further 
present,  that  A.  W.  and  M.  I^.,  both  late  of  the  county  aforesaid,  yeo- 
men, not  being  ignorant  of  the  premises,  but  well  knowing  the  same, 
and  contriving  and  intending  the  due  course  and  execution  of  justice 
to  obstruct  and  prevent,  on  the  twentieth  day  of  October  in  the  year 
aforesaid  and  at  the  county  aforesaid,  unlawfully,  corruptly  and 
wickedly  did  entice,  solicit  and  endeavour  to  persuade  the  said 
G.  F.  to  abandon  and  withdraw  himself  from  the  further  accusa- 
tion and  prosecution  of  the  said  S.  S.  and  J.  M'K.,  to  the  evil  example 
of  all  others  in  the  like  case  offending,  and  against,  &c.  {Conclude 
as  in  book  1,  chap.  3). 

(/)  Drawn  by  Mr.  Bradford  in  1780. 
2S 


S2G  OFFENCES  AGAINST  SOCIETY. 

Persuadivg  a  witness  -not  to  give  evidevce  against  a  'person  charged 
with  an  offence  before  the  grand  jury. {g) 

That  heretofore,  to  wit,  on,  &c.,  A.  B.,  of,  &c.,  {here  state  the  au- 
thority of  the  government  by  which  the  attendance  of  the  ivitne-ss 
was  competed,  whether  a  summons  or  a  recognizance).  And  tlie 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that  at 
tlie  time  of  taking  said  recognizance,  {or  the  service  of  said  su77imons, 
as  the  case  may  be),  and  from  then  until  and  upon  the  said 
day  of  therein  mentioned,  the  evidence  of  the  said  A.  B.  was 

material  and  necessary  to  have  been  given  in  before  the  said  grand 
jury,  on  the  subject  matter  then  to  be  heard  and  considered  by  them; 
which  said  grand  jury  were  then  and  there  duly  and  legally  convened 
on  that  behalf,  and  were  legally  authorized  and  had  competent  au- 
thority to  consider  and  decide  upon  the  subject  matter  then  and  there 
by  them  to  be  heard ;  and  that  the  said  term  of  said  court,  [here  des- 
cribe the  court),  a  bill  of  indictment  was  prepared  against  the  said 
A.  B.  for  the  offence  aforesaid.  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  C.  D.,  of,  «fec.,  contriving  and 
intending  the  due  course  of  justice  to  obstruct  and  impede,  on 
at  unlawfully  and  unjustly  dissuaded,  hindered  and  prevented 

the  said  A.  B.  from  appearing  before  the  justices  of  said  court,  and 
before  the  said  grand  jury,  to  give  evidence  before  the  said  grand  jury 
on  the  bill  of  indictment  preferred  as  aforesaid  against  the  said 
and  that  in  consequence  thereof  the  said  A.  .B.  did  not  appear  and 
give  evidence  according  to  his  duty  in  that  respect,  against,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

Inducing  a  witness  to  withhold  his  evidence  as  to  the  execution  of  a  deed 
of  trust,  in  Virginia.{h) 

That  J.  F.,  inn-keeper,  late,  &c.,  on,  &c.,  at,  &c.,  did  offer  a  con- 
tempt to  the  Supreme  Court  of  Law,  held  in  and  for  Wythe  County, 
in  this,  that  he  the  said  J.  F.  did  use  means  to  prevent,  and  did  then 
and  there  prevent  one  S.  W.  from  attending  as  a  witness  to  give  evi- 
dence to  prove  the  execution  of  a  deed  of  trust,  which  deed  of  trust 
was  executed  by  the  said  J.  F,-  to  J.  D,,  after  he  the  said  S.  W.  had 
been  duly  summoned  to  attend  said  court  as  a  witness  to  prove  said  deed 
of  trust,  on  the  fourth  day  of  October  term,  one  thousand  eight  hun- 
dred and  twelve,  by  virtue  of  a  summons  issued  by  the  clerk  of  said 
court,  who  was  duly  authorized  to  issue  said  summons,  which  act 

(;»•)  Davis'  Prcc.  219.  "This,"  says  Mr.  Davis,  "  is  an  offence  at  common  law,  for 
wliicli  sec  Hawk.  b.  1,  c.  21,  s.  15.  Tlie  mere  attempt  to  stifle  evidence,  tlinug-h  it  does 
not  succeed,  is  crimi.mi ;  C  Risl  4G4  ;  2  East  5,  21 ,  22 ;  2  Str.  <)04  ;  2  f.each  925. 

(Ji)  (>jin.  V.  Feeky,  2  Va.  Cases  1.  On  llie  usage  joined  on  tiiis  information,  the  jury 
found  the  defendant  guilty,  and  assessed  his  fine  at  twenty  dollars. 

The  (Icfendnnt  movcil  the  court  to  arrest  the  judgment,  for  the  following  reasons:  1. 
because  the  offence  is  not  specified  with  sufficient  certainly;  2.  because  there  is  no  crimi- 
nal offence  stated,  the  sul)|in;na  stated  in  the  iiilormatinii  not  being  legal  proces[3.  The 
«}U(stioiis  arising  on  lliis  UKjtion  were  iidjnuriird  to  the  (Miicral  Court. 

The  decision  of  this  court  was  as  fi)liijvvs:  ''Onlrnd,  That  it  he  certified,  &,c.,  that  the 
offence  is  stated  in  the  information  wilii  sutiieieiit  certainty;  that  it  is  a  criminal  offence, 
for  which  an  infrjrmation  will  lie;  and  that  there  exists  on  tlic  face  of  the  record  no  cause 
tor  uncsling  the  judgment." 


PERJURY.  327 

of  the  said  J.  F.  is  contrary  to  the  laws  and  usages  of  this  common- 
wealth, and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Endeavouring  to  suborn  a  person  to  give  evidence  on  the  trial  of  an  ac- 
tion of  trespass,  issued  in  the  Supreme  Judicial  Court  of  Mass. {i) 

That  at  the  Supreme  Judicial  Court,  begun  and  holden  at  B.,  with- 
in and  for  the  County  of  S.,  on  the  Tuesday  of  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  two,  before* I.  P., 
Esq.,  then  the  chief  justice  of  the  said  court,  a  certain  issue  duly 
joined  in  the  said  court  between  one  C.  D.  and  one  E.  F.,  in  a  certain 
plea  of  trespass,  wherein  it  was  alleged,  in  substance,  that  the  said 
E.  F.  had,  with  force  and  arms,  assaulted,  beat,  bruised,  wounded 
and  ill-treated  the  said  C.  D.,  in  which  the  said  C.  D.  was  plaintifi', 
and  the  said  E.  F.  was  defendant,  came  on  to  be  tried  in  due  form  of 
law,  and  was  then  and  there  tried  by  a  certain  jury  of  the  country  in 
that  behalf  duly  summoned,  taken,  empanneled  and  sworn  between 
the  parties  aforesaid  ;  and  that  before  the  trial  of  the  said  issue,  and 
during  the  time  the  same  was  pending,  to  wit,  on  the  day  of 
at  B.  aforesaid,  in  the  county  aforesaid,  G.  H.  of  in  the 
county  aforesaid,  grocer,  wickedly  contriving  and  intending,  as  much 
as  in  him  lay,  to  prevent  justice  and  pervert  the  due  course  of  law, 
and  intending  unjustly  to  aggrieve  the  said  E.  F.,  the  defendant 
above  named,  and  wickedly  to  cause  and  procure  the  said  E.  F,  to 
be  found  guilty  of  the  premises  alleged  against  him  in  the  said  issue, 
and  thereby  to  subject  him  to  the  payment  of  large  sums  of  money 
for  the  payment  of  damages  and  costs  to  be  recovered  against  him  in 
the  suit  aforesaid,  then  and  there,  on  the  same  day  and  year  last 
aforesaid,  at  B.  aforesaid,  in  the  said  County  of  S.,  did  unlawfully  and 
wickedly  solicit,  instigate,  and,  as  much  as  in  him  lay,  wilfully  and 
corruptly  endeavour  to  persuade  and  procure  one  I.  J.  to  be  and  ap- 
pear as  a  witness  on  the  part  and  behalf  of  the  said  C.  D.,  the  plain- 
tiff aforesaid,  at  the  trial  of  said  issue  so  as  aforesaid  joined,  and, 
upon  the  same  trial,  to  commit  wilful  and  corrupt  perjury,  by  falsely 
swearing  and  giving  in  evidence  to  and  before  the  jurors  of  the  jury 
aforesaid,  so  sworn  between  the  parties  aforesaid  to  try  the  said  issue, 
in  substance  and  to  the  effect  following,  that  is  to- say,  (here  insert 
the  evidence  which  the  party  ivas  instigated  to  give,  with  proper 
innuendoes  if  necessary) ;  whereas  in  truth  and  in  fact,  {here  assign 
the  perjury  intended  to  be  committed,  by  negativing  the  false  evi- 
dence intended  to  be  given),  in  manifest  subversion  of  justice,  against, 
&.C.,  and  contrary,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Soliciting  a  woman  to  commit  perjury,  by  sirearing  a  child  to  an  inno- 
cent person,  the  attempt  being  unsuccessful.{j) 

That  A.  B.,  late  of,  &c.,  being  a  wicked  and  evil  disposed  person, 

(i')  This  precedent,  says  Mr.  Davis,  is  drawn  on  the  statute  of  Massachusetts  of  1812, 
c.  143,  but  it  concludes  also  at  common  law;  Prec.  268.  See  also  2  Cliit.  482,  which 
cites  the  above  precedent  from  Cro.  C.  C.  5^7,  6th  ed. 

(_;')  To  solicit  or  attempt  to  persuade  a  witness  to  swear  falsely,  though  such  solicitation 
be  ineffectual,  is  a  misdemeanor  at  common  law;  R.  v.  Edwards,  cited  in  Schofieid's 
case  Caid.  400;  Dickinson's  Q.  S.  6lli  ed.  450.  For  a  suceesst'ul  attempt  to  commit  tue 
eume  offence,  sec  ante,  p.  321. 


32S  OFFEXCES  AGAIiVST  SOCIETY. 

and  minding  and  intending  great  injury  to  one  C.  D.,  of,  &c.,  a  good 
and  vahiable  subject  of  our  said  lady  the  queen,  and  unjustly  to  cause 
and  procure  him  to  be  put  to  great  charges  and  expense  of  his 
moneys,  and  to  give  security  for  the  maintenance  of  a  child,  of  which 
one  E.  F.,  spinster,  was,  on,  &c.,  pregnant,  and  which  by  the  laws  of 
this  realm  was  hkely  to  become  a  bastard,  did  on  the  same,  &c.,  afore- 
said, at,  &c.,  aforesaid,  unlawfully  and  wickedly  solicit,  instigate,  per- 
suade and  procure  the  said  E.  F.  to  go  before  one  of  the  justices  of 
our  said  lady  the  queen,  asisigned,  &e.,  and  that  she  the  said  E.  F., 
in  consequence  of  such  solicitation,  instigation,  persuasion  and  pro- 
curement, did  go  in  her  own  proper  person  before  G.  H.,  one  of  the 
justices  of  our  said  lady  the  queen,  assigned,  &c.,  and  then  and  there 
did,  &c.  {state,  the  filiation) ;  whereas  in  truth  and  in  fact,  he  the 
said  A.  B.,  at  the  time  when  he  so  endeavoured  to  persuade,  solicit 
and  instigate  the  said  E.  F.  to  make  oath  and  swear  as  aforesaid, 
then  and  there  well  knew  that  the  said  C.  D.  would  be  put  to  great 
charges  and  expense  of  his  moneys,  if  she  the  said  E.  F.  would  swear 
as  aforesaid;  .and  whereas  hi  fact  and  in  truth,  he  the  said  A.  B.,  at 
the  said  time  when  he  so  endeavoured  to  persuade,  solicit  and  insti- 
gate the  said  E.  F.  to  make  oath  and  swear  as  aforesaid,  had  no 
reasonable  or  probable  cause  wliatsoever  to  suspect  or  imagine  that 
the  said  C.  D.  was  the  father  of  such  child,  of  which  she  the  said  E. 
F.  was  so  pregnant  as  aforesaid  ;  and  whereas  in  truth  and  in  fact, 
she  the  said  E.  F.  never  told  or  informed  him  the  said  A.  B.,  that  the 
said  C.  D.  was  father  of  such  child ;  and  whereas  in  truth  and  in  fact, 
he  the  said  A.  B.  so  wickedly  and  unlawfully  endeavoured  to  per- 
suade, solicit  and  instigate  the  said  E.  F.  to  swear  as  aforesaid,  in 
order  that  he  the  said  A.  B.  njight  be  exonerated^  freed  and  dis- 
charged from  divers  expenses  which  miglit  accrue  to  him  as  being 
the  fiither  of  such  child,  after  the  same  should  be  born  of  the  body  of 
her  the  said  E.  F.,  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Soh'citivg  a  witness  to  disobey  a  suhpa"na  to  give  evidence  before  the 
grand  jurij.{k) 

That  on,  &.C.,  a  certain  writ  of  our  said  lady  the  queen,  called  a 
subpoena  ad  testificandum,  had  been  and  was  duly  issued  and  tested 
by  and  in  the  name  of  P.  Q.,  of,  &c.,  at,  &c.,  the  same  day  and  year 
aforesaid,  the  said  P.  Q.  then  and  there  being  custos  rotulorum  in 
and  for  the  said  county,  which  said  writ  was  directed  to  B.  B.  and 
D.  D.,  by  which  said  writ  our  said  lady  the  queen  commanded,  &c., 
{recite  the  writ).  And  the  jurors,  &c.,  that  a  copy  of  the  said  writ 
was,  on,  &c.,  at,  &c.,  duly  served  on  the  said  H.  H.,  who  then  and  • 
tliere  had  notice  to  appear  and  give  evidence  according  to  the  exi- 
gency of  such  writ,  and  that  the  evidence  of  the  said  H.  PI.,  at  the 
time  of  issuing  the  said  writ,  and  iVoni  thence  until  and  upon  the  said, 
&:c.,  therein  mentioned,  was  material  and  necessary  to  have  been 

{k)  This  is  an  oflcnco  indictaMc  af.  cotnmon  law;  ITawk.  1).  1,  c.  21.  The  more  attempt 
t.n  stifle  cviflcncc  i.s  cririiiti;il,  thonjrli  (lie  persuasion  sliould  not  suecccd,  on  tlie  fjeiieral 
principle  that  an  ineitenienl  to  eomuiit  any  eiinic  is  itsell'  criminal;  R.  v.  I'liillii  s,  G  East 
R.  464;  Dickinson's  Q.  S.  Glli  ed.  151. 


PF.r.jLRV.  329 

given  before  the  said  grand  jury  on  the  said  bill  of  indictment,  so  to  be 
preferred  against  the  said  A.  B.  as  aforesaid,  and  that  at  the  Sessions 
of  the  Peace  holden  at,  &c.,  in  and  for  the  said  county  on,  &c.,  albre- 
said,  sucli  bill  of  indictment  was  prelerred  against  the  said  A.  B.,  to 
and  before  a  certain  grand  jury  then  and  there  duly  assembled  in 
that  behalf  And  the  jurors,  &c.,  that  A.  B,,  late  of,  &c.,  being  an 
evil  disposed  person,  and  contriving  and  intending  to  obstruct  and 
impede  the  due  course  of  justice,  on,  &c.,  at,  &c.,  unlawfully  and  un- 
justly solicited,  persuaded  and  prevailed  upon  the  said  H.  H.  to 
absent  himself  from  the  said  Sessions  of  the  Peace,  holden  as  afore- 
said, and  not  to  appear  there  before  the  justices  then  and  there  as- 
sembled, to  testify  the  truth  and  give  evidence  before  the  said  grand 
jury  on  the  said  bill  of  indictment  so  preferred  against  the  said  A.  B.  as 
aforesaid  (and  the  said  H.  H.,  in  consequence  of  such  solicitation  and 
persuasion,  did  not  so  appear  and  give  evidence  according  to  the 
exigency  of  said  writ),  to  the  great  obstruction,  hinderance  and  delay 
of  public  justice,  in  contempt,  &c.,  to  the  evil,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Second  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  on  the  said,  &c.,  a  certain  other  writ  of  our  said  lady  the 
queen  had  duly  issued,  directed  to  the  said  B.  B.  and  D.  D.,  by  which 
said  last  mentioned  writ,  our  said  lady  the  queen  commanded  the 
said  B.  B.  and  D.  D.,  that,  &c.,  [recite  the  ivrit).  And  the  jurors,  &c., 
that  the  evidence  of  the  said  H.  H.,  at  the  time  of  issuing  the  said 
last  mentioned  writ,  and  from  thence  until  and  upon  the  said,  &c., 
therein  mentioned,  was  material  and  necessary  to  have  been  given 
before  the  said  grand  jury  in  the  said  bill  of  indictment  so  to  be  pre- 
ferred against  the  said  A.  B.  as  aforesaid.  And  the  jurors,  &c.,  that 
the  said  A.  B.  being  an  evil  disposed  person,  &c.,  {same  as  first  count, 
^ayrno-,  "  endeavoured  to  dissuade,"  &c.,  and  omitting  the  allega- 
tions that  the  solicitation  was  successful). 


2B* 


330  OFFENCKS  AGAhVST  SOCIETY. 

CHAPTER  II.    - 

CONSPIRACY. («) 

First  coimt.     Unexecuted  covspiracy. 

That  A.  B.,  late  of,  &c.,  yeoman,  and  C.  D.,  late  of,  &c.,  yeonian,(/)) 
being  persons  of  evil  minds  and  dispositions,  together  with  divers 
other  evil  disposed  persons,  whose  names  are  to  this  inqnest  as  yet 
unknown,  {see  note  6),  wickedly  devising  and  intending  to  {settiyig 
out  the  intentyic)  on,  &c.,  at  the  county  aforesaid, (t/)  and  within  the 
jurisdiction  of  the  said  court,  fraudulently,  maliciously  and  unlaw- 
fully did  conspire,  combine,  confederate  and  agree  together,(e)  be- 
tween and  amongst  themselves,  by(/")  {setting  fo^Hh  the  means), 
unlawfully  to(o-)  {setting forth  the  party  to  be  injured,  or  the  object 
to  be  attained),  against,  &c.     Conclude  as  in  book  1,  chap.  3). 

Second  count.     Conajpiracy  icith  overt  act. 

That  the  said  defendants,  being  such  persons  as  aforesaid,  and  de- 
vising and  intending  as  aforesaid,  afterwards,  to  wit,  on,  &c.,  at,  &c., 
fraudulently,  maliciously  and  unlawfully  did  conspire,  combine,  con- 
federate and  agree  together,  between  and  amongst  themselves,  &c., 
{as  in  first  count,  and  proceed  to  state  overt  act,  as  follows):  And 
the  inquest,  &c.,  on  their  oath  aforesaid,  do  further  present,  that 
the  said  defendants,  together  with  tlie  said  evil  disposed  persons,  in 
execution  of  the  said  last  mentioned  premises,  and  in  pursuance  of 
the  said  conspiracy,  combination  and  agreement,  between  and 
amongst  them  as  atbresaid,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  did(/?) 
{setting  j'orth  overt  act),  against,  &c.  {Conclude  as  in  book  \,chap.  3). 

(a)  Before  proceeding  to  examine  the  reqnisites  of  an  indietment  for  conspiracy,  there 
arc  one  or  two  features  of  tlie  olfenec  irener;illy  which  it  is  wortii  wliile  to  consider.  "The 
offence  of  conspiracy,"  says  Mr.  Serg-cant  'J'alfourd,  "is  more  difiicult  to  be  ascertained 
precisely  than  any  other  for  which  an  indictment  lies  ;  and  is  indeed  rather  to  be  con- 
sidered as  governed  by  positive  decisions  than  by  any  consistent  and  intelligible  piinciples 
of  law.  It  consists,  according  to  all  the  authorities,  not  in  the  accomplishment  of  any 
unlawful  or  injurious  purirose,  nor  in  any  one  act  moving  towards  that  purpose;  but  in 
the  aclOal  concert  and  agreement  of  two  or  more  persons  to  effect  something,  which  being 
so  concerti'd  or  agreed,  the  law  regards  as  the  object  of  an  indictable  conspiracy.  When 
parties  Iiave  once  agreed  to  cheat  a  particular  ])crson  of  his  money,  though  they  may  not 
then  hiive  fixed  on  any  means  for  tlmt  iHirpor^e,  the  offence  of  cons])iracy  isconipleic; 
per  B:iyley  J.,  R.  v.  Gill  et  at.,  2  li.  &,  Al.  20.");  see  however,  p.  31H,  n.  (i) ;  as  to  R.  v.  Gill, 
see  Reg.  v.  King,  1.3  L.  J.  (M.  C.)  119  (K.  1844) ;  K.  v.  Blake  and  Tye,  ih.  1.31  (T.  1844), 
There  arc  two  classes  of  cases  in  which  the  criminality  of  such  agreement  is  perfectly 
intelligible  and  obvious;  first,  where  the  object  proposed  W'ould,  if  accomplished,  be  a  cri- 
rninai  offence  in  all  parties  acting  in  it — to  which  class  the  power  of  sessions  in  many 
cases  yet  extends;  and  second,  where  ihougli  the  ultimate  oliject  may  be  lawful,  the  means 
by  wliich  the  [)arties  conspirators  j)ropr)se  to  effect  their  purpose,  necessarily  involve  in 
them  an  indictable  offence.  "An  indictment  lijr  conspiracy  ought  to  show,  either  that  it 
was  for  an  urilawfnl  [)ur|)ose,  or  to  ellVct  a  lawful  purpose  by  un  unlawful  means;"  per 
Ld.  Denman,  R.  v.  Seward,  1  A.  &  K.  711  ;  .3  N.  &.  M.  .'i.'il ;  but  he  is  reported  to  have 
since  said,  tiiat  "this  antithesis  is  not  very  correct;"  Reg.  v.  Peck,  1)  A.  tfc  E.  GiK) ;  1  Per. 
&,  Dav.  508.  However,  wlierc  the  indictment  was  for  conspiring  to  indict  and  prosecute 
G.  for  a  crime  liable  to  capital  punishment,  and  then  stated,  that  "according  to  the  con- 
spiracy" the  defendants  did  afterwards  falsely  indict  him,  it  was  held  unnecessary  to  lay 


CONSPIRACY.  331 

a  conspirary  to  indict  falsely,  as  tlie  conspiracy  was  completely  formed  and  actually  carried 
into  cxcculion;  U,  v.  Si)r,i:,r<^e  and  otliers,  2  Burr.  99'J ;  cited  by  I^d.  Denman,  3  N.  &  M. 
562;  1  A.  <fc  E.  714.  Of  the  first  kind  arc  conspiring  to  conunit  a  felony,  or  cons|)irin:r 
to  obtain  money  under  false  pretences,  &e. ;  where  the  object,  if  carried  into  effect,  would 
be  a  substantive  ofi'ence,  and  where,  therefore,  concert  is  indictable  as  an  acl  in  itself  tend- 
ing to  produce  it.  Of  this  second  kind  is  a  conspiracy  to  support  a  cause,  in  itself  just,  by 
false  testimony ;  and  the  same  principle  would  apply  here  ;  for,  whether  the  (^oncerted 
offence  be  tiie  end  or  the  means,  it  is  equally  an  offonce  which,  if  consummated,  would 
subject  the  offenders  to  the  visitation  of  criminal  justice.  But  it  is  not  easy  to  understand 
on  what  principle  conspiracies  have  been  liolden  indictable,  where  neither  the  end  nor  the 
means  are  in  themselves  regarded  by  the  law  as  criminal,  however  reprcliensible  in  point 
of  morals.  Mere  concert  is  not  in  itself  a  crime,  for  associations  to  prosecute  felons,  and 
even  to  put  laws  in  force  against  political  offenders,  have  been  holdcn  legal;  R.  v.  Murray 
and  others,  tried  before  Abbott  C.  J.,  at  Guildhall,  1823.  If,  then,  there  be  no  indict- 
able  offence  in  the  object,  no  indictable  offence  in  the  means,  and  no  indictable  offence  in 
the  concert,  in  what  part  of  the  conduct  of  the  conspirators  is  the  offence  to  be  found? 
Can  several  circumstances,  each  perfectly  lawful,  make  up  an  unlawful  act?  And  yet 
such  is  the  general  language  held  on  this  subject,  that  at  one  time  t!ie  immorality  of  the 
object  is  relied  on;  at  another  the  evidence  of  the  means;  while  at  all  times  tiie  concert  is 
stated  to  be  the  essence  of  the  charge;  and  yet  that  concert,  independent  of  an  illegal  ob- 
ject or  illegal  means,  is  admitted  to  be  blameless. 

The  utmost  limit  of  the  modern  doctrine  of  conspiracy  seems  to  be  reached  in  the  deci- 
sions respecting  concerted  disapprobation  of  a  performer  or  a  piece  at  the  theatre.  The 
case  of  .Mac kl in  is  well  knov.'n,  on  whose  prosecution  several  persons  were  committed  for 
hissing  him  on  his  appearance  in  one  of  Garrick's  favourite  characters;  and  in  accordance 
with  this  precedent.  Sir  James  i\Iansfield  is  said  to  have  expressed  himself  in  the  case  of 
Clifford  V.  Brandon,  2  Campb.  36'),  in  the  following  terms :  "  The  audience  have  certainly 
a  right  to  express  by  applause  or  hisses  the  sensations  of  the  moment;  and  nobody  has 
ever  hindered  or  would  ever  question  the  exercise  of  that  right.  But  if  any  body  of  men 
were  to  go  to  the  theatre  with  the  settled  intention  of  hissing  an  actor  or  damning  a  piece, 
there  can  be  no  doubt  such  a  deliberate  and  preconcerted  scheme  would  amount  to  a  con- 
spiracy, and  that  the  persons  concerned  in  it  might  be  brought  to  ptjhishment."  In  this 
case  the  act  is  lawful;  the  means  are  lawful;  the  motive  may  be  even  laudable,  as  if  a  no- 
toriously immoral  piece  were  announced,  and  the  parties  determined  to  oppose  it;  and  yet 
the  concert  alone  makes  the  crime.  It  is  extremely  difficult  to  understand  this,  unless 
concert  be  a  crime;  and  still  more  difficult  to  reconcile  it,  or  many  other  of  thC/Cases,  to 
the  decision  of  the  King's  Bench  in  Ibl  1,  R.  v.  Turner  and  others,  13  East  22-<,  cited  by 
Taunton  J.,  in  R.  v.  Seward  et  al.,  1  A.  &  E.  71 1,  to  show  that  it  is  not  the  combining  to  do 
anij  wroncfful  act  which  constitutes  a  conspiracy;  where  it  was  holden  that  an  indictment 
would  not  lie  for  a  conspiracy  to  enter  a  preserve  for  hares,  the  property  of  another,  for 
the  purpose  of  ensnaring  them  in  the  night  time,  and  with  offensive  weapons,  Ld.  Ellen- 
borough  observing,  "  I  should  bo  sorry  to  have  it  doubted,  whether  persons  agreeing  to  go 
and  sport  upon  another's  ground,  in  other  words,  to  commit  a  civil  trespass,  should  be 
thereby  in  peril  of  an  indictment  for  an  offence  which  would  subject  them  to  infamous 
punishment."  Here  the  object  was  as  much  illegal  as  any  object  can  be  which  is  not  in 
itself  indictable,  and  the  act  concerted,  that  of  going  armed  at  night  to  destroy  game,  so 
dancrerous  to  the  public,  that  it  has  since  been  made  punishable  with  transportation;  and 
yet  this,  according  to  the  doctrine  laid  down,  was  not  the  subject  of  an  indictable  conspi- 
racy, because  it  was  only  a  civil  trespass.  On  the  principle  of  this  decision,  it  is  difficult 
to  understand  how  many  of  the  cases  of  conspiracy  can  be  sustained,  as  that  of  conspiracy 
to  seduce  a  young  lady  ;  for  the  object  in  itself,  however  immoral,  would  be  only  the  sub- 
ject of  an  action  on  the  case  at  the  suit  of  the  father;  R.  v.  Ld.  Grey  and  others,  3  St.  Tr. 
519 ;  1  East  P.  ('.  460.  And  yet  this  has  been  holden  indict.ible,  although  no  artifice  was 
employed,  and  the  lady  was  a  willing  participator  in  the  elopement  planned  by  the  defend- 
ants;  ih.;  see  also  R.  v.  Delaval  and  others,  3  Burr.  R.  14!i4. 

"The  great  difficulty,"  say  the  commissioners  f^)r  revising  the  statutes  of  New  York, 
"in  enlarging  the  definition  of  this  oflTenee,  consists  in  the  inevitable  result  of  depriving 
the  courts  of  equity  of  the  most  effectual  means  of  detecting  fraud,  by  compelling  a  dis- 
covery under  oath.  It  is  a  sound  principle  of  our  institutions,  that  no  man  shall  be  com- 
pelled to  accuse  himself  of  any  crime,  which  ought  not  to  be  violated  in  any  case.  Yet 
such  must  be  the  result,  or  the  ordinary  jurisdiction  of  courts  of  equity  must  be  destroyed, 
by  declaring-  any  private  fraud,  when  committed  by  two,  or  an^"-  concert  to  commit  it,  cri- 
minal." This  view,  it  is  true,  is  contested  by  Stobbins,  senator,  in  Lambert ».  The  People, 
9  Cow.  609.  "  But  the  court  is  not  thereby  ousted  of  its  jurisdiction.  Because  a  defendant 
is  not  bound  to  answer  certain  facts,  the  i)laintiff  is  not  precluded  from  proving  those  facts 
bv  witnesses,  nor  is  the  court  prccl'idcd  t>oin  admiiiisteriiirr  tlie  proper  relief  when  the 
facts  are  shown,     'i  he  settled  law  of  that  court  has  always  been,  that  a  demurrer  to  tiie 


332  OFFKNCES  AGAINST  SOCIETY. 

discovery  sought,  is  no  bar  to  that  part  of  the  bill  which  prays  relief;  3  Johns.  Ch.  R. 
471  •  5  ib.  If-d.  Tlie  amount  of  tlie  objection  tlien  is  this:  if  conspiracies  to  commit  private 
frauds  are  criminal,  a  defendant  in  equity  is  not  bound  to  confess  such  crime.  The  plain- 
tirt"  must  prove  his  case  by  other  means  than  tlie  dclendant's  confession,  and  tlicn  the  court 
stands  ready  to  relieve  him.  Surely  there  is  no  great  hardship  in  this.  It  is  simply  put- 
tin"  the  plaintiff  upon  proof  of  his  cause  in  that  court,  in  the  same  maimer  as  he  is  bound 
to  prove  it  in  every  other  court." 

(h)  A  conspiracy  must  be  by  two  persons  at  least;  one  cannot  be  convicted  of  it,  unless 
he  has  been  indicted  for  consjHring  with  persons  to  the  jurors  unknown;  1  Hawk.  c.  12; 
Turpin  v  State,  4  Blackf.  72;  People  v.  Howell,  4  Johns.  296;  State  v.  Allison,  3  Yerg. 
4-28;  R.  V.  Kinncrslcy,  1  Stra.  I!i3;  1  Ld.  Raym.  4S4;  R.  v.  Ludbury,  12  Mod.  262;  13^ 
East  412;  2  Salk.  51i3.  So  in  an  indictment  for  conspiracy  against  two,  the  acquittal  of 
one  is  the  acquittal  of  the  other ;  State  v.  Tom,  2  Dev.  569.  But  where  three  persons 
were  engaged  in  a  conspiracy,  and  one  was  acquitted  and  the  other  died  before  trial,  it 
was  held  that  the  third  could  nevertheless  be  tried  and  convicted  ;  R.  v.  Nichols,  2  Str. 
1227;  R.  V.  Kennedy,  1  Str.  193;  People  v.  Olcott,  2  Johns.  Ca.  3U1.  A  man  and  his  wife, 
being  in  law  but  one  person,  cannot  be  convicted  of  the  same  conspiracy,  unless  other  par- 
tics  are  charged  ;  but  where  the  defendant  is  charged  with  conspiracy  with  persons  un- 
known, it  is  good,  notwithstanding  the  names  of  the  persons  unknown  must  necessarily 
liave  transpired  to  the  grand  jury  ;  People  v.  Mather,  4  Wend.  231.  Where  an  indictment 
charo-ed  a  man  and  his  wife  with  conspiring  with  a  person  unknown,  to  extort  hu.sh  money, 
itc.,*"it  was  held  that  A.,  though  alleged  by  the  prosecution  to  be  the  person  unknown, 
covered  by  the  indictment,  was  admissible  as  a  witness  tor  the  defence,  he  not  appearing 
to  be  a  party  on  the  record;  Com.  v.  Wood,  7  Law  Rep.  58.  The  jury  may  find  all  or 
some  of  the  defendants  guilty  of  conspiring  to  effect  one  or  more  of  the  objects  specified 
upon  a  count  charging  one  conspiracy,  and  one  only,  against  all  the  defendants  therein 
named,  to  effect  several  illegal  objects;  O'Conntll  v.  Reg.,   11  CI.  &  Fin.  155;   9  Jur.  25. 

It  is  not  necessary  that  the  same  co-conspirutors  should  be  continued  through  all  the 
counts.     If  the  proof  should  make  the  change  prudent,  the  names  may  be  varied. 

(c)  Where  the  intent  is  susceptible  of  proof,  it  is  prudent  specially  to  aver  it. 

(d)  The  venue'  may  be  laid  m  the  county  in  which  an  act  was  done  by  any  of  the  con- 
spirators, in  furtherance  of  their  common  design;  R.  v.  Brisac,  4  East  164. 

(e)  It  is  questionable,  whetiier  ain  allegation  that  the  defendants  conspired  together  for 
the  purpose  of  doing  an  act,  is  equivalent  to  an  allegation  that  they  conspired  to  do  it;  see 
R.v.  Sewaid,  3  N.  &  M.  557;  1  A.  &  E.  7U6,  S.  C. 

(/)  Conspiracies  in  reference  to  this  part  of  the  indictment,  may  be  classed  under  the 
following  heads : 

I.  Conspiracies  to  commit  an  indictable  ofTence. 

1st.  Conspiracies  to  commit  felonies. 

2d.  Conspiracies  to  commit  misdemeanors,  under  which  division  will  be  treated: 

(I).  Conspiracies  to  violate  the  false  pretence  laws. 

(2).  Conspiracies  to  violate  the  lottery  laws. 

(3).  Conspiracies  to  violate  the  laws  making  it  penal  in  a  debtor  to  secrete  his 
property  with  intent  to  defraud  his  creditors. 

(4).  Conspiracies  to  commit  breaches  of  the  peace. 

(5).  Conspiracies  to  produce  abortion. 

(6).  Conspiracies  to  utter  forged  notes. 

(7).  Seditious  conspiracies. 

II.  Conspiracies  to  make  use  of  means  themselves  the  subject  of  indictment,  to  efTcct 
an  indifferent  object. 

IH.  Cons|)iracies  to  do  an  act  the  commission  of  which  by  an  individual  is  not  indict- 
able, hut  the  commission  of  which  by  two  or  more  in  pursuance  of  a  previous  combination, 
is  calculated  to  ctTect  either  of  the  following  objects  : 

Ist.  To  defraud  an  individual  by  fraudulent  and  indirect  devices. 
2d.  To  commit  an  immoral  act,  such,  for  instance,  as  the  seduction  of  a  young 
woman. 

3d.  To  prejudice  the  public  generally,  as  for  instance  by  unduly  elevating  or  de- 
pressing the  price  of  wages,  of  toll  or  of  any  merchantable  commodity,  or  endeavour- 
ing to  defraud  the  revenue. 

4th.  To  falsely  accuse  another  of  crime,  or  use  other  improper  means  to  injure  his 
reputation,  or  to  extort  money  from  him. 

5th.  'J'o  im[)Overish  anotiier  in  his  trade  or  profession.  , 
Glh.  To  prevent  the  due  cour.sc  of  justice. 

I.  Conspiracieit  to  commit  an  indiclaliln  offence. 

Isl.  Connpiriicir.s  to  commit  felonies. 
Where  an  indictment  chargi-s  a  consi)iriicy  to  commit  a  felony,  using  the  same  words 


CONSPIRACY.  333 

to  set  forth  tlie  object  of  the  conspiracy  as  would  have  been  used  to  charjro  the  coniinis- 
6ion  of  tlie  otfonce  itself,  no  possible  exception  as  to  form  can  be  taken.  Bnt  tiiis  is  often 
impracticable,  and  if  it  were  not,  it  would  be  absurd  to  charge  A.  and  B.  with  conspiring 
"  with  one  knife,  of  the  value  of  one  shilling,  which  he  the  said  A.  in  iiis  right  hand  was 
then  and  there  to  have  and  hold,  him  the  said  C.  feloniously,  tStc.,' to  strike,"  or  with  con- 
spiring to  rob  the  prosecutor  of  half  a  dozen  distinct  articles  which  he  liappcned  to  have 
in  his  pocket,  but  of  the  value  and  character  of  which  it  would  be  irrational  to  suppose 
the  defendant  to  have  been  beforehand  acquainted.  It  is  enough,  therefore,  for  the  pleader 
to  set  out  the  offence  aimed  at  by  such  apt  words  as  will  dcscrihe  it  as  a  conclusion  of  law. 
Thus  it  is  sufficient  to  say,  that  the  defendants  conspired  "  feloniouBly,  wilfully  and  of  their 
malice  aforethought,  to  kill  and  murder,"  &.C.,  without  describing  the  weapon  to  iiave  been 
used;  State  v.  Dent,  .3  Gill  it  Johns.  H;  or  that  they  conspired  "certain  goods  and  c'lat- 
tels  of  great  value,  &c.,  tiien  belonging  to  and  on  the  person  of  the  said  A.  B.,  feloniously 
to  steal,"  without  going  on  to  mention  what  those  goods  and  chattels  were  ;  Com.  v.  Rogers, 
5  S.  &  R.  463;  see  R.  v.  Higgins,  2  East  .5.  This  liberality,  in  fact,  is  e.ttcnded  to  every 
case  where  an  attempt  is  made  to  comn>it  an  otfence  itself  indictable,  whether  by  one  or 
by  a  confederacy  ;  Arch.  C.'P.  5th  Am.  ed.  262,  485,  487,  458;  People  v.  Busli,  4  Hill  N.  Y. 
11.  133:  \V!i.  C.  L.  80. 

Care  must  be  taken  in  preparing  an  indictment  for  this  branch  of  conspiracy,  to  charge 
the  offence  as  merely  an  unconsummated  attempt.  If  either  in  an  overt  act  or  in  the  body 
of  the  count,  the  commission  of  the  actual  offence  be  charged,  the  conspiracy  merges  in 
the  felony,  and  the  indictment  is  incapable  of  supporting  a  conviction;  People  ».  Mathers, 
4  \Vend.'265;  Com.  v.  Kingsbury,  Mass.  106;  Cum.  «..Parr,  5  \V.  &  S.  345. 

The  policy  of  our  courts,  in  a  kindred  line  of  offences,  has  permitted  a  joinder  of  counts 
which,  though  originally  discountenanced  in  England,  can  work  no  injustice  to  the  prisoner, 
and  may  save  great  expense  and  loss  of  time.  Thus,  counts  for  robbery  and  for  attempts  to 
rob  ;  for  rape  and  attempts  to  ravish  ;  for  burglary  and  attempts  to  commit  bur<,rlary,  as  has 
been  seen,  are  frequently  joined  ;  ante,  p.  13;  Harman  v.  Com.,  12  S.  &  R.  60;  Burk  v.  State, 
2  riar.  &  J.  42G ;  State  v.  Coleman,  5  Port.  52;  State  ».  Montague,  2  M'C.  287;  State  v. 
Gaffney,  Rice  431 ;  State  v.  Boise,  1  M'M.  190.  When  the  dcflMidant  is  tried  on  the  two 
cliarges  together,  he  has  the  advantage  of  bringing  to  bear  on  the  lighter  offence  the  full 
number  of  challenges  awarded  to  him  on  theheavier;  nor  can  he  be  said  to  be  embarrass- 
ed in  the  preparation  of  his  defence,  as  precisely  the  same  evidence  which  would  disprove 
tlie  attempt,  would  disprove  the  consummation.  The  only  difference  is,  that  instead  of 
ailer  an  acquittal  of  the  felony  being  subjected  to  another  binding  over  and  trial  on  the 
constituent  misdemeanor,  the  two  charges  are  tried  at  the  same  time  when  the  evidence 
on  each  side  is  fresh  and  at  hand,  and  when  neither  can  take  advantage  of  a  discovery  of 
the  antagonist  case.  That  this  practice  extends  as  properly  to  conspiracies  to  commit  in- 
dictable offences,  as  to  attempts  or  assaults  with  intent  to  commit  the  same,  may  be  urged 
with  great  reason.  By  such  a  course  tlie  dilTiculty  of  merger  will  he  avoided ;  for  if  the 
attempt  was  completed,  the  verdict  attaches  to  the  felony ;  if  not,  to  the  conspiracy. 

2d.   Conspiracies  to  commit  misdemeanors. 

As  the  law  is,  that  wliere  the  object  is  illegal  it  is  not  necessary  to  set  out  the 
means  at  large;  R.  v.  Eccles,  in  note  to  R.  v.  Turner,  13  East  230;  2  Russ.  on  Crimes 
G87,  601;  \Vh.  C.  L.  409;  it  has  become  a  favourite  practice  in  this  country, 
in  preparing  an  indictment  for  a  misdemeanor,  the  description  of  which  is  attended 
with  any  difficulties,  to  insert  a  count  for  a  conspiracy.  When  the  evidence  of  the 
prosecution  is  finished,  the  court  will  compel  it,  in  a  proper  case,  to  state  on  what  class 
of  counts  it  relies;  and  when  this  discretion  is  judiciously  exercised,  it  is  hard  to  see 
how  the  defendant  can  be  embarrassed  in  management  of  his  defence.  Where  he  is 
shown  to  have  acted  conjointly  with  others,  he  cannot  justly  complain  if  he  is  charged 
with  having  conspired  with  tlieni  in  producing  the  particular  result;  and  even  when  his 
co-conspirators  are  not  brought  to  the  notice  of  the  grand  jury,  the  courts  have  tolerated 
counts  for  consi)iracy,  in  which"  he  is  charged  with  conspiring  with  persons  unknown. 
This  practice  of  joining  counts  for  conspiracy  with  counts  for  the  constituent  misde- 
meanor, is  strongly  illustrated  by  Com.  v.  Gillespie,  7  S.  &.  R.  460.  Tlie  defendants  were 
charged  in  one  set  of  counts  with  the  sale  of  a  lottery  ticket,  and  in  another  with  a  con- 
spiracy  to  sell  it;  the  law  being  that  in  an  indictment  fw  the  offence,  the  ticket  should 
be  particularly  set  out,  and  as  the  ticket  is  pcrliaps  purposely  of  a  very  complex  character, 
it  is  very  convenient  for  the  pleader  to  back  up  a  count  for  the  individual  otlence  with  a 
count  for  a  conspiracy  "  to  sell  and  expose  to  sale  and  cause  to  be  sold  and  exposed  to 
sale"  (reciting  the  words  of  the  statute),  "  a  lottery  ticket  and  tickets  in  a  lottery  not  au- 
thorized by  the  laws  of  this  commonwealth."  This  was  the  language  of  the  count,  which 
was  sustained  by  the  Supreme  Court  afler  a  new  trial  in  consequence  of  a  variance  in  the 
count  purporting  to  set  fortJi  the  ticket,  and  an  arrest  of  judgment  for  want  of  parlicu- 
lantv  in  t!ie  counts  charging  the  s:ili'  of  the  ticket  wiliimitan  attempt  to  set  it  out.  After 
sliouing  that  such  a  genciahty  of  statement  us  ajipeared  m  the  latter  counts  could  not  be 


334  OFFENCES  AGAINST  SOCIETV. 

tolerated,  Duncan  J.  proceeded:  "But  tlie  same  reason  does  not  apply  to  the  first  count, 
for  the  conspiracy  ilselt'  is  tlie  crime.  It  is  different  from  an  indictment  for  stealing,  or 
action  for  trespass,  where  the  offence  consists  of  an  act  done,  which  it  is  clearly  in  the 
l)ower  of  the  prosecutor  to  lay  with  certainty.  The  conspiracy  here  was  to  sell  prohibited 
lottery  tickets,  any  he  could  sell,  not  of  any  prohibited  lottery  but  of  all.  The  conspiracy 
was  the  gravamen,  the  gist  of  the  offence."  The  same  liberality  in  the  construction  of 
.counts  for  conspiracies  to  effect  objects  per  se  illegal,  having  prevailed  in  England,  1 
Russ.  on  Crimes  691^  the  same  practice  of  joining  conspiracy  counts  with  counts  for  the 
constituent  misdemeanor,  is  tiicre  sanctioned  ;  3  M.  &  S.  550;   I  Chit.  C.  L.  255. 

A  difficulty,  however,  was  started  in  j\Iassachusetts,  in  Com.  v.  Kingsbury,  5  Mass. 
106,  which,  had  it  been  generally  recognized,  would  have  destroyed  this  branch  of  consjji- 
rucy.  A  conspiracy,  it  was  said,  to  commit  either  a  misdemeanor  or  felony,  merges  in 
the  overt  act,  when  such  overt  act  a|)pears  to  have  been  consummated.  The  case  before 
tlie  court  was  one  of  a  conspiracy  to  commit  a  felony,  and  as  no  one  doubts  that  in  such 
case  the  attempt  merges  in  the  consummation,  the  principle  announced  by  the  court  was 
properly  applied.  But  to  extend  it  to  cases  of  niisdemeanor.s,  is  in  conflict  with  the  English 
text  books,  where  such  a  doctrine  is  flcvcr  broached,  as  well  as  with  the  books  of  prece- 
dents, wheie  forms  constantly  occur  of  conspiracies  to  commit  misdemeanors  to  which  the 
overt  act  is  attached.  In  Massachusetts,  in  fact,  the  application  of  the  doctrine  of  mer- 
ger to  cases  of  misdemeanor,  has  been  intercepted  by  Rev.  Stat.  c.  137,  s,  11  ;  Com.  v. 
Drum,  ID  Pick.  479;  Com.  v.  Goodhue,  2  Mete.  193.  In  New  York,  Maine  and  Penn- 
sylvania, the  contrary  oj)inion  has  been  justified  by  express  decisions  ;  People  v.  Mather,  4 
VVend.  265  ;  Marcy  J.;  Com.  v.  Hartmann,  5  Barr  60;  State  v.  Murray,  15  Maine  R.  100; 
and  throughout  the  Union  it  has  been  tacitly  acquiesced  in  by  the  verdicts  which  have 
been  sustained  in  the  numerous  cases  where  counts  for  conspiracy  to  commit  misde- 
meanors (e.  g.  obtaining  goods  by  false  pretences  or  the  sale  of  lottery  tickets),  have  been 
supported  by  evidence  of  the  actual  commission  of  the  constituent  offence.  "  It  is  su[)- 
jjosed,"  said  Marcy  J.,  4  Wend.  265,  "  that  a  conspiracy  to  commit  a  crime  is  merged 
in  the  crime  where  the  conspiracy  is  exocutcd.  This  may  be  so  where  the  crime 
is  of  a  higher  grade  than  the  conspiracy,  and  the  object  of  the  cons[)iraey  is  fully  accom- 
plished; but  a  conspiracy  is  only  a  misdemeanor,  and  v\'here  its  object  is  only  to  commit 
a  misdemeanor,  it  cannot  be  merged.  Wherever  crimes  are  of  equal  grade  there  can  be 
no  technical  merger.  This  court  had  this  question  under  consideration  in  the  case  of 
Bruce,  and  there  intimated  an  opinion  that  a  conspiracy  to  commit  a  misdemeanor,  was 
not  merged  in  the  misdemeanor  when  actually  committed." 

In  those  states  where  conspiracy  is  made  a  statutory  felony,  great  difficulty  may  how- 
ever arise  in  trying  misdemeanors  in  all  cases  where  two  or  more  persons  are  proved  to 
liave  joined  in  the  commission  of  the  offences  If  there  was  joint  action,  must  there  not 
have  been  joint  concert,  and  if  so,  must  there  not  have  been  a  conspiracy,  and  is  not  the 
misdemeanor  merged  ? 

Under  this  class  of  conspiracies  will  be  treated  : 

(1).  Conspiracies  to  violate  the  false  pretence  laios. 

The  leading  case  on  this  point  is  R.  ».  Gill,  2  B.  &  Al.  204,  in  which  an  indict- 
ment which  will  appear  in  the  text,  (p.  344),  was  sustained,  which  merely  charged  the  de- 
fendants with  conspiring  "by  divers  false  pretences  and  subtle  means  and  devices,  to 
obtain  and  to  acquire  to  themselves,  of  and  from  P.  D.  and  G.  D.,  divers  large  sums 
of  money,  of  the  respective  moneys  of  the  said  P.  D.  and  G.  D.,  and  to  cheat  and 
defraud  them  respectively  thereof."  This  was  broad  doctrine,  as  there  are  few  con- 
spiracies to  defraud,  which  could  not  be  forced  into  the  form  thus  sanctioned,  and  it  is 
evident  that  under  it  the  defendant  has  scarcely  any  notice  of  the  offence  which  he  is 
about  to  meet.  So  strongly  was  this  objection  felt,  that  notwithstanding  the  remarks 
of  Ld.  Mansfield,  that  no  other  form  could  be  had  for  an  undigested  conspiracy  to  ob- 
tain  goods  in  this  marmcr,  tlie  courts  over  and  again  lamented  the  latitude  of  the  prece- 
dent, and  attempted  in  particular  cases  to  so  far  restrain  it  as  to  prevent  its  working  an 
injury  to  the  defence.  Thus  in  R.  v.  Parker,  U  Law  J.  N.  S.  102,  M.  C;  3  Q.  B.  R. 
202  ;  2  (i.  &  13.  709,  Williams  J.,  declared  that,  "it  has  been  always  thought  that  in  Rex 
V.  Gill,  the  extreme  of  laxity  was  allowed."     In  R.  v.  Peck,  9  A.  &  E.  686,   1  Per.  & 

D.  508,  an  indictnient  was  held  bad  from  want  of  a  due  specification  of  the  means,  which 
charged  the  defendants  with  "  unlawfully  conspiring  to  defraud  divers  persons,  who  should 
bargain  with  tln^n  for  the  sale  of  merciiandisc,  of  great  quantities  of  such  merchamlise, 
without  j)aying  for  the  same,  with  intent  to  obtain  to  themselves  money  and  other  profit." 
So  also  a  count  which  alleged  that  the  defendants  conspired  "by  divers  false,  artful  and 
subtle  stratagems  and  contiivances,  as  much  as  in  them  lay,  to  injure,  oppress,  aggrieve 
and  impoverish  E.  W.  and  T.  W.,  and  to  cheat  and  defraud  them  of  their  moneys,"  was 
I)ronounccd  by  the  Court  of  King's  Bench  incapai)lc  of  sustaining  a  verdict;  H.  v.  Biers, 
I  A.  &,  E.  .327;  see  also,  R.  v.  Parker,   1 1  Law  .1.  N.  S.,  M.  C.  192  ;  King  v.  K.,  7  A.  & 

E.  721 ;  cited  in  Arch.  C.  f.  79b;  and  ii.  v.  Richardson,  1  M.  &,  liob.  402.     lu  none  of 


COXSPIRACY.  335 

these  cases,  however,  was  the  object  of  the  conspiracy  an  offence  per  se  indictable,  and 
though  in  eacli  of  thetn  tlic  court  animadverted  with  y^reat  pungency  upon  a  laxity  of  ]jieud- 
ing  wliicli  g^ave  the  defendant  no  notice  of  wliat  he  was  to  be  tiied  for,  yet  there  was  an  ex- 
press recognition  of  the  distinction  between  a  conspiracy  to  commit  an  indictable  offence, 
wliere  the  means  need  not  be  set  out,  and  a  conspiracy  to  commit  an  act  unindictable,  where 
the  means  must  appear.  In  R.  v.  King,  decided  in  the  King's  Bench,  and  afterwards  in 
the  Exchequer,  in  1844,  7  A.  &.  E.  1'2\,  the  principle  of  R.  v.  Gill  was  broadly  affirmed 
to  be  good  by  the  several  judges;  and  though  the  ease  was  reversed  in  the  Exchequer  on 
another  point,  viz.  that  the  particular  parties  sought  to  be  defrauded  should  have  been  set 
out  (a  point  which  will  be  noticed  in  the  next  note),  the  judges  who  gave  the  o()inion  in 
the  latter  court,  yielded  a  tacit  acquiescence  in  the  sufficiency  of  the  allegation  in  conlro- 
versy.  In  the  King's  Bench,  Ld.  Denman  said:  "  I  am  of  opinion  that  this  count  is  suf- 
ficient. The  general  form  used  in  Rex  v.  Gill,  2  B.  &.  Al.  204,  has  constantly  been  held 
good.  Holroyd  J,  says  there:  'The  conspiracy  is  the  offence,  and  it  is  quite  sufficient 
to  state  only  the  act  of  conspiring  and  the  object  of  the  conspiracy  in  the  indictment. 
Here  it  is  stated  that  the  parties  did  conspire,  and  that  the  object  was  to  obtain  by  false 
pretences,  money  from  a  particular  person.  Now  a  conspiracy  to  do  tiiat  would  be  in- 
dictable, even  where  the  parties  had  not  settled  the  means  to  be  employed.'  He  does  not 
lay  it  down  that  a  conspiracy  must  be  alleged  to  defraud  a  person  described  by  name. 
And  there  are  many  cases  where  .parties  may  conspire  to  injure  others,  without  anticii)a- 
ting  who  the  particular  persons  will  be.  I  am  not  prepared,  therefore,  to  say  that  the  first 
part  of  this  count  is  not  good.  But,  if  it  were  not  so,  Rex  v.  Spragge,  2  Burr.  999,  shows 
that  the  overt  acts  may  support  it.  The  objection,  that  the  individuals  mentioned  to  have 
been  affected  by  them  are  not  shown  to  be  tiiose  against  whom  the  defendants  conspired, 
is  answered  by  the  remark  made  before,  that,  in  the  conspiring,  piirticular  individuals  may 
not  have  been  contemplated.  It  was  argued  tiiat  the  overt  acts  limit  the  allegation  in  the 
first  part  of  the  indictment,  and  that,  even  if  that  showed  a  criminal  conspiracy,  the  state- 
ments afterwards  reduce  it  to  something  not  indictable.  But  I  think  tliat  result  does  not 
follow,  even  if  the  overt  acts  alleged  are  innocent ;  the  only  object  of  those  being  to  give 
information  of  the  particular  facts  by  which  it  is  proposed  to  make  out  the  conspiracy, 
and  the  mode  in  which  the  prosecutor  asserts  that  it  was  carried  into  effect.  As  to  the 
last  paragraph,  I  think  it  does  not  contain  any  distinct  charge,  but  is  only  an  unnecessary 
summing  up." — Patterson  J.:  "I  also  think  that  the  count  is  good.  The  general  rule 
as  to  naming  parties,  laid  down  by  Mr.  Starkie,  applies  only  where,  from  the  nature  of  the 
case,  there  is  a  person  to  be  named;  in  conspiracy,  for  example,  where  the  defendants 
have  conspired  to  injure  some  given  person  ;  but,  if  the  conspiracy  is  to  cheat  any  persons 
out  of  all  mankind,  the  rule  cannot  be  applied.  In  Rex  v.  De  Berenger,  3  i\I.  &,  S.  67,  no 
one  could  know  who  would  be  the  purchasers  of  stock  of  a  future  day.  So,  here,  it  was 
not  known  whose  goods  would  be  obtained  in  puisuance  of  the  conspiracy;  and  it  appears 
by  the  overt  acts  that  the  defendants  obtained  certain  goods  of  A.,  B.  and  C,  and  other 
goods  from  'divers  other  tradesmen,  the  liege  subjects,'  ifcc,  '  whose  names  are  to  the 
jurors  unknown,'  &.c.  Therefore,  I  think  that  the  part  of  the  indictment  charging  the 
conspiracy  is  good,  though  it  does  not  name  the  persons  to  be  defrauded.  That  it  does 
not  particularly  specify  the  means,  is  no  objection,  according  to  Rex  v.  Gill.  So  the  in- 
dictment stands,  independently  of  tlie  overt  acts.  As  to  these,  when  the  present  motion 
was  made,  I  understood  the  objection  to  be  rather  that  the  overt  acts  were  not  consistent 
with  the  general  charge,  than  that  they  were  insufficient  to  support  a  charge  of  conspiracy. 
It  is  Contended  that  false  pretences  are  alleged,  and  the  pretences  not  negatived.  But  no 
false  pretence,  in  the  sense  alluded  to,  is  laid  throughout  the  indictment.  In  the  ordinary 
case  of  indictable  false  pretences,  the  pretence  is  laid  as  having  been  made  to  the  person 
whose  goods  are  obtained  ;  but  that  is  not  so  here ;  the  averment  is  only  that  some  of  the 
defendants  pretended  that  debts  were  due  to  two  of  them  from  a  third,  in  whose  possession 
the  goods  were,  and  then  that,  in  pursuance  of  the  conspiracy,  and  for  tlie  pur()oses  stated, 
the  two  commenced  actions  against  the  third  for  such  fictitious  debts,  and  obtained  judg- 
ment and  execution,  under  which  the  goods  were  removed  before  the  times  of  credit  had 
expired.  That  is  a  complete  allegation  of  a  fraud  upon  the  sellers;  and  the  argument 
that  no  such  fraud  appeared  was  founded  upon  a  fallacy',  the  defendant's  counsel  arguing 
upon  each  alleged  act  without  reference  to  its  being  laid  as  done  in  pursuance  of  the  con- 
spiracy."    See  also  remarks  of  Ld.  Denman  C.  J.,  in  R.  v.  Kcuiick,  post,  p.  'Mi,  n.  {j). 

But  in  a  case  decided  in  December,  1846,  R.  v.  Gompertz,  11  Jurist  204  (the  material 
portions  of  which  are  printed  in  6  Pa.  L.  J.  377,  and  the  indictment  in  which,  and  the  rea- 
soning of  the  court  upon  it,  are  substantially  given  post,  p.  351),  the  Court  of  King's  Bench, 
by  solemnly  alfirming  R.  v.  Gill,  has  put  to  rest  the  question  of  the  propriety  of  the  indict- 
ment in  the  latter  case.  Tiicre  were  eight  counts  in  the  indictment  in  R.  v.  Gompertz, 
the  latter  of  which,  as  will  be  observed,  charged  the  defendants  with  conspiring  "  by  divers 
false  pretences  and  indirect  means  to  cheat  and  defraud  the  said  S.  P.  R.  of  his  munevs,  to 
the  great  damage,  t'raud  and  deceit  of  the  said  S.  P.  R.,  to  the  evil  ciample,"  tSic.     Tiiere 


336  OFFEXCES  AGAINST  SOCIETY. 

was  a  verdict  for  the  crown  on  eacii  of  the  countg,  before  Ld.  Denman  C.  J  ,  at  the  Mi(!f]!e- 
sex  sitlini;?;,  and  on  Diceinber  17,  1  b4(),  a  motion  tor  a  new  trial  was  arirucd  before  the 
court  in  i^anc.  "First,  we  think,"  said  Ld.  Denman,  in  J,^iving  the  opinion  of  the  court, 
"  that  there  is  no  ground  for  arresting  the  judgment  in  tiiis  case;  one  count  is  good,  on 
.the  authority  of  R.  v.  Gill  (2  B.  &  Al.  204),  never  overruled,  but  founded  on  excellent  rea- 
son, and  always  recognized,  tliougli  not  witliout  regret,  because  that  form  of  indictnuiit 
may  give  too  little  inlbrmation  to  the  accused.  A  fair  observation  was  made  upon  the 
manner  in  which  that  precedent  was  treated  in  R.  v.  Biers  (1  A.  &  E.  327),  but,  even  troin 
the  expressions  tliere  used,  and  much  more  from  what  has  been  said  in  later  cases,  it  ap- 
pears plainly  that  tiie  court  has  never  doubted  the  correctness  of  the  decision  in  R.  v.  Gill." 
ll  is  clear,  therefore,  that  in  England  it  is  suliicient  to  charge  the  defendants  witli  a  con- 
spiracy to  defraud  the  prosecutor  of  his  moneys,  "  by  divers  false  pretences  and  indirect 
means  ;"  and  the  only  positive  qualifications  which  have  been  grafted  on  the  principle,  are, 
first,  that  it  must  appear  iironi  the  indictment  that  the  property  sought  to  be  obtained  was 
*not  the  property  of  "the  defendant;  R.  v.  Parker,  11  Law  J.  N.  S.  102,  Mag.  C. ;  3  Q.  B. 
2i)2;  2  G.  &  D.  709;  and  secondly,  that  if  the  indictment  be  general,  the  court  will  order 
tiie  prosecutor  to  furnish  a  particular  of  the  charges  to  be  relied  on,  though  it  will  not 
compel  him  to  state  the  specific  acts  to  be  proved  and  the  time  and  place  at  which  they 
are  alleged  to  have  occurred  ;  R.  v.  Hamilton,  7  C.  &  P.  44d  (sec  post,  p.  351,  where  tiie 
indictment  and  proceedings  in  the  latter  case  are  given). 

In  this  country,  though  on  the  subject  of  the  pleading  in  conspiracy  tiiere  has  been  pe- 
culiar fluctuation  of  judicial  sentiment,  there  is  no  case  which  weakens  tii.e  authority  of 
R.  i;.  Gill,  but  on  the  contrary,  the  few  decisions  whioli  touch  the  same  subject  matter,  go 
a  great  way  to  confirm  it.  It  is  true,  that  no  indictment  following  tlie  phraseology  of  R. 
V.  Gill,  has  received  judicial  notice,  but  as  will  be  seen  when  we  proceed  to  examine  the 
subsequent  subdivisions  of  conspiracies  to  cheat,  a  degree  of  latitude  has  been  permitted 
which  can  leave  but  little  doubt  that  the  ]>recedent  in  R.  v.  Gill  would  be  upheld  in  most 
of  the  states,  as  sufliciently  stiingent.  Tlius  in'Com.  v.  M'Kisson,  8  8.  &  R.  420,  the  Su- 
preme Court  of  Pennsylvania  went  to  the  perilous  extreme  of  sustaining  a  count  whicli 
merely  charged  the  defendants  with  conspiring  "to  cheat  and  defraud  tlie  said  J.  S.  of  the 
aforesaid  heiler;"  and  though  recently  the  same  court  showed  an  inclination  to  retrace  its 
footsteps,  vet  the  last  mentioned  case  rested  on  the  construction  of  another  statute,  and 
will  not  probably  be  hereafter  extended  to  cases  other  than  those  to  which  it  was  originally 
applied  ;  Com.  v.  liartmann,  5  Barr  GO,  cited  in  full  by  Judge  Lewis  in  his  valuable  Trea- 
tise on  Criminal  Law,  j).  222. 

In  Com.  r>.  Hartmann,  the  indictment  cliarged  the  defendants  with  conspiring  to  violate 
that  section  of  the  act  of  1842,  abolishing  imprisonment  for  debt,  \vhich  made  it  a  misde- 
meanor for  a  debtor  to  secrete  his  property  with  intent  to  defraud  his  creditors.  How  far 
the  indictment  shrank  below  the  statutory  standard,  will  be  in  a  few  moments  examined, 
the  inquiry  now  being  whether  there  was  any  thing  in  the  reasoning  of  the  court  which 
would  divert  the  application  of  the  English  doctrine  to  our  own  practice.  After  no- 
ticiu""  the  inadi:quacy  of  this  indictment  to  sustain  a  conviction  for  the  statutory  offence, 
independent  of  the  conspiracy,  Gibson  C.  J.  said:  "Now,  though  it  may  not  be  necessary 
in  an  indictment  fi)r  conspiracy,  so  minutel}'  to  describe  the  unlawful  act  where  it  lias  a 
specific  name,  which  indicates  its  criminality,  yet  where  the  conspiracy  has  been  to  do  an 
act  prohibited  by  statute,  the  object  which  makes  it  unlawful  can  be  descrihed  only  by  its 
particular  features,  and  without  doing  so,  it  cannot  be  shown  that  the  confederates  had  an 
unlawful  purpose.  It  may  be  said  that  the  form  of  a  criminal  jjurjiose,  meditated  but  not 
jjut  in  act,  can  seldom  be  described  ;  but  it  can  be  as  readily  laid  as  proved."  It  is  true, 
that  in  a  preceding  jiassagc  exception  was  taken  to  the  omission  of  the  indictment  to  des- 
cribe the  place  wh(;re  the  secreted  goods  wiux-  ke])t,  or  the  person  who  hud  them  in  cus- 
tody, or  the  time  and  place  of  the  transaction,  and  it  was  urged  that  as  a  conspiracy  to 
secrete  goods  abroad,  having  for  its  object  no  infraction  of  the  laws  of  Pennsylvania,  would 
not  be  criminal  in  Pennsylvania,  such  an  hy[)otliesis  should  be  distinctly  excluded  by  the 
record.  But  it  will  be  no  difficult  matter  to  frame  a  count  for  a  conspiracy,  in  such  a  way 
6s  to  meet  these  difliculties,  without  essentially  varying  from  the  precedent  in  R.  v.  Gill. 
By  charging  tliat  the  defendants  conspired  "  by  divers  false  jiretences  and  indirect  means, 
liien  and  there  to  cheat  and  defraud  the  said  A.  B.  of  his  goods,"  &c.,  describing  them  as 
exactly  as  jjossible,  it  is  submitted  that  the  technical  obstacles  arising  from  Com.  v.  Hart- 
mann, may  be  surmounted.  Certainly,  when  the  exeeeding  liberality  of' |)I<'ading  is  consi- 
dered, which  was  recognized  by  the  Supreme  Court  in  Com.  v.  Eberle,  3  S.  &  R.  U  ;  ('orn. 
V.  M'Kisson,  8  S.  &-  R.  420;  C^m.  v.  Gillespie,  7  S.  &  R.  4(i0  ;  Corn.  v.  Collins,  3  S.  &l  R.220; 
Com.  V.  Clary,  4  Barr  210 ;  Com.  v.  MifHin,  5  W.  (fc  S.  461 — eases  which  will  be  examined 
more  fully  under  their  a[)propriate  heads — the  precedent  given  in  R.  v.  (:Jill,  with  the  ([uuli- 
fication.s  which  have  been  just  noticed,  must  be  treated  as  of  as  yet  unimpaired  validity  in 
Pennsylvania. 

In  Massachusetts,  Com.  v.  Ward,  I  Mass.  473 ;  Com.  v.  Tibbetts,  2  IMass.  53G ;  Com.  v. 


CON'SPIRACY.  337 

Warren,  6  Mass.  72;  in  Maryland,  Slate  v.  Buchanan,  2  Har.  &.  J.  317;  and  in  South  Ca- 
rolina, State  ».  Dcwitt,  2  Hill  2«2,  the  reasoning  ol"  R.  v.  Gill  is  virtually  recoirriizcd. 
From  the  action  of  the  Supreme  Court  of  New  Jersey  in  State  v.  Rickey,  4  Halst.  2y3,  a 
contrary  doctrine,  it  is  true,  is  sometiiTies  attern[)ted  to  be  drawn  ;  but  it  will  appear,  first, 
that  jji  State  v.  liickcy,  tlie  indictment  was  constructed  on  a  diftcient  principle  from  that 
in  R.  V.  Gill,  and  secondly,  that  the  reasoning  of  the  court  in  State  v.  Rickey  rested  prin- 
cipally on  the  assumption  that  the  revised  statutes  of  New  Jersey  limited  conspiracies  to 
the  single  act  of  getting  an  innocent  man  indicted  by  malice  and  false  evidence.  The  in- 
dictment charged  that  the  defendants  conspired  "  to  obtain  large  sums  of  money  and  bank 
bills,  the  property  of  the  President,  Directors  and  Company  of  the  State  Bank  at  Trenton, 
by  means  of  the  several  checks  and  drafts  of  the  said"  defendants  "respectively,  to  be 
drawn  on  the  cashier  of  tiic  said  the  President,  Directors  and  Company  of  the  State  Bank 
at  Trenton,  when  they,  the  said"  defendants  "  had  no  funds  in  said  bank  for  the  payment 
of  the  said  checks  and  dralls."  Overt  acts  followed,  none  of  them  showing  a  specific  mis- 
demeanor;  and  with  so  lax  a  statement  of  the  cause  of  prosecution,  tliere  is  no  ground  for 
surprise  that  the  court  thought  proper  to  quash  the  indictment,  even  had  the  statutory  objec 
lion  not  obtained.  There  is  no  averment  tliat  the  defendants  knew  they  had  no  funds  in  tlie 
bank;  there  is  no  averment  that  they  were  to  have  no  funds  ready  at  the  time  the  checks 
were  presented.  The  indictment  was  to  be  treated  in  the  same  way  as  if  it  had  charged  the 
defendants  with  an  attempt  to  "defraud'*  an  individual  by  drawing  bills  on  him  when  tlsey 
had  no  funds  in  his  hands.  To  make  the  offence  a  misdemeanor,  it  would  be  necessary 
to  introduce  averments  showing  that  by  some  fraudulent  means  the  bank  was  to  be  induced 
to  believe  that  the  defendants  really  had  funds  in  its  custody.  Now  it  is  plain  that  unless 
tlie  drawing  checks  on  a  bank  where  the  drawer  has  no  funds,  is  made  penal  by  statute  in 
New  Jersey,  the  indictment  in  State  v.  Rickey  was  too  broad.  It  showed  a  conspiracy  to 
effect  an  object  neither /jsr  se  indictable,  nor  a  misdemeanor  at  common  law.  If  such  had 
been  the  case,  the  indictment,  on  the  ruling  of  R.  p.  Gill,  would  have  been  good.  The 
same  reasoning  may  be  applied  to  Lambert  v.  People,  7  Cowen  167,  9  Cowen  578,  where 
the  indictment  was  even  more  general,  it  merely  charging  the  defendants  with  conspiring 
"  wroncrfullij,  injuriously  and  unjustly,  by  wrongful  und  indirect  means  to  cheat  and  de- 
fraud" the  prosecutors  "of  their  goods  and  chattels  and  effects,"  &c.  This  is  certainly 
loose  pleading,  but  bad  as  it  was,  it  was  sustained  in  the  Supreme  Court,  and  the  judgment 
on  it  only  reversed  in  the  Court  of  Errors,  after  a  vigorous  struggle,  by  a  majority  of  one. 
An  examination  of  the  American  as  well  as  the  English  cases,  in  conclusion,  goes  to  estab- 
lish the  doctrine  of  R.  ».  Gill,  that  in  a  jurisdiction  where  the  statute  of  false  pretences  ex- 
ists, it  is  enough  to  charge  the  defendants  with  conspiring  "  by  divers  false  pretences"  to 
obtain  the  prosecutor's  goods.  Strong  to  this  point  is  the  celebrated  case  of  State  v.  Bu- 
chanan, 5  Har.  &  J.  317,  where  the  pleading  of  conspiracy  is  reviewed  with  remarkable 
ability  and  elegance;  as  well  as  the  earlier  cases  in  Massachusetts,  Pennsylvania  and  South 
Carolina,  which  have  been  already  cited.     (.S'ee  two  following  heads). 

(2).  Conspiracies  to  violate  the  lottery  laws. 

The  only  cases  in  the  books,  of  conspiracies  of  this  class,  arise  in  Pennsylvania,  and 
were  produced  by  the  rigour  with  which  the  courts  in  that  state  applied  the  doctrine  of 
variance  to  the  setting  out  of  lottery  tickets.  When  the  intentional  complexity  of  lottery 
tickets  is  taken  into  consideration,  it  is  no  wonder  that  the  pleader,  under  the  pressure  of 
a  rule  which  held  "  Burrill"  for  "  Burrall"  to  be  a  fatal  variance  in  the  setting  forth  of  the 
ticket,  should  insure  before  hand  against  any  vices  in  the  statutory  count,  by  adding  to  it 
a  count  for  conspiracy.  This  device  was  countenanced  by  the  Supreme  Court,  in  Com.  c. 
Gillespie,  7  S.  »fc  R.  469,  a  case  virtually  resting  on  the  authorit}^  of  R.  v.  Gill,  discussed 
in  the  previous  paragraph.  Tlie  defendants  in  Com.  c.  Gillespie  were  charged,  in  eight 
out  of  nine  counts,  with  the  statutory  offences  of  selling  lottery  tickets,  offering  them  t'or 
sale  and  advertising  them— some  of  the  counts  setting  out  tickets  in  full,  others  merely 
charging  the  sale  of  "a  lottery  ticket,"  ifcc,  in  the  language  of  the  act.  Tiie  first  count 
was  for  a  conspiracy  to  "  sell  and  expose  to  sale,  and  cause  and  procure  to  be  sold  and  ex- 
posed to  sale,  a  lottery  ticket  and  tickets,  in  a  lottery  not  autlinrized  by  the  laws  of  the 
commonwealth  ;"  therein  precisely  tbllowing  the  statute.  On  motion  t'or  new  trial,  and  in 
arrest  of  judgment,  the  court  held,  1.  that  the  counts,  stating  the  offence  in  the  words  of 
the  statute  without  setting  forth  the  ticket,  were  bad  from  want  of  suthcient  particularity; 
2.  that  there  must  be  a  new  trial  on  the  count  setting  forth  the  ticket,  in  consequence  of 
a  variance  between  the  ticket  and  the  indictment;  but  3.  that  the  conspiracy  count  was 
enough  to  sustain  a  conviction  at  common  law.  This  was  in  \&22;  and  in  1827,  on  a 
conviction  in  both  classes  of  counts,  on  an  indictment  of  the  same  character  (except  that 
there  was  but  one  defendant,  who  was  charged  with  conspiring  with  others  to  the  afrand 
jury  unknown),  the  court  infiicled  the  statutory  punishment,  being  a  fine  to  the  Union 
Canal  Company,  on  the  statutory  counts,  and  a  fine  at  common  law  on  the  conspiracy 
counts;  Com.  v.  Sylvester,  6  Pa.  L.  J.  263.    Two  points  may  be  extracted  from  these  cases; 

29 


33S 


OFFEXCES  AGAINST  SOCIETY. 


1.  tiiat  tliouffli  under  the  lottery  statute  in  force  at  the  time,  tiie  indictment  must  go  inside 
of  the  woidb  of  llie  statute  and  set  out  tlie  tenor  of  the  ticket,  yet  for  a  conspiracy  to  effect 
the  sale  of  such  a  ticliet,  it  is  enoug-h  to  pursue  the  statute  alone,  without  the  speci- 
fication of  detail;  2.  that  the  conspiracy,  when  properly  pleaded,  absorbs  the  constituent 
misdemeanor,  and  will  be  punished  as  a  common  law  offence,  without  reference  to  the 
statutory  penalty.  The  first  point  is  abundantly  demonstrated  in  the  argument  of  Dun- 
can J.  Alter  showing,  that  to  transcribe  the  language  of  the  act  was  not  the  proper  way 
to  frame  a  count  for  the  individual  misdemeanor,  he  proceeded  to  recognize  the  distinc- 
tion indicated  by  Ld.  Mansfield  in  R.  v.  Eccles,  between  a  conspiracy  to  commit  an  offence 
and  its  actual  commission.  "But  the  same  reason  does  not  apply  to  the  first  count,  for 
the  conspiracy  itself  is  the  crime.  It  is  different  from  an  indictment  for  stealing,  or  action 
for  trespass,  where  the  offence  consists  of  an  act  done,  which  it  is  clearly  within  the  power 
of  the  prosecutor  to  lay  with  certainty.  The  conspiracy  here  was,  to  sell  prohibited  lot- 
tery tickets,  any  tliat  he  could  sell,  not  of  any  particular  lottery,  but  of  all.  The  conspi- 
racy was  the  gravamen,  the  gist  of  the  offence ;"  7  S.  &  R.  476.  The  second  point  is  es- 
tablished  by  the  fact,  that  though  at  the  time  the  cases  in  question  were  determined, 
the  statutory  punishment  on  the  sale  of  lottery  tickets,  was  a  fine  to  the  Union 
Canal  Company,  the  sentence  imposed  on  the  conspiracy  counts  was  a  fine  at  common 
law  to  the  state.  This  position,  however,  may  be  considered  as  qualified,  in  Pennsylvania, 
by  Com.  ».  Hartmann,  5  Barr  60,  by  which  it  is  determined  that  a  conspiracy  to  commit 
a  statutory  offence,  is  never  to  be  punished  more  heavily  than  the  offence  itself. 

(3).  Conspiracies  to  violate  the  laics  which  make  it  penal  in  a  creditor  to  secrete  his  goods 
with  intent  to  defraud  his  creditors. 

The  26th  section  of  l.he  New  York  act  "abolishing  imprisonment  for  debt,"  Sessions 
Laws  of  1831,  p.  402,  provides  that  "any  person  who  shall  remove  any  of  his  pro- 
perty out  of  any  county,  witii  intent  to  prevent  the  same  from  being  levied  on  by  any 
execution,  or  wiio  shall  secrete,  assign,  convey  or  otherwise  dispose  of  any  of  his  properly 
with  intent  to  dufraud  any  creditor,  or  to  prevent  such  projjcrty  being  made  liable  for  the 
payment  of  his  debts,  and  any  person  who  shall  receive  such  property  with  such  intent," 
&.C.,  "  shall,  on  conviction,  be  deemed  guilty  of  a  nnsdemeanor."  This  section  so  far  as  it 
goes,  was  literally  transcribed  and  enacted  by  the  legislature  of  Pennsylvania  in  the  act  of 
12th  of  July,  1842,  section  21),  but  not  until  it  had  received,  so  far  as  the  pleading  apart 
is  concerned,  a  definite  construction  by  New  York  courts  in  the  case  of  People  v.  Under- 
wood, 16  Wend.  546.  That  case  (which  is  given  in  substance  ante,  p.  229),  sanctioned  the 
form  of  indictment  jircviously  in  use,  which  has  been  placed  in  the  text;  ib.  In  New  York, 
theretbre,  a  conspiracy  to  violate  the  provisions  of  this  act  would  be  good  which  follows 
lilt'  language  of  the  precedent  given  ante,  p.  229.  In  Pennsylvania,  under  Com.  v.  Hartmann, 
which  was  noticed  in  the  last  section  of  the  present  note,  the  same  particularity  is  required, 
it  being  held  that  an  indictment  charging  the  defendant  with  "  removing  and  secreting 
divers  goods  and  merchandises  of  the  value  of  $5000,  the  description,  quantity  and  quality 
of  the  said  merchandises  being  yet  unknown,"  is  bad.  "Neither  time,  place  nor  circum- 
stances," said  the  chief  justice,  "  is  given,  and  the  goods  are  not  attempted  to  be  described 
by  the  place  whero  they  were  kept  or  by  the  person  who  had  them  in  custody.  They  may 
even  not  have  been, in  the  stale^  and  a  conspiracy  to  secrete  them  abroad,  having  for  its 
object  no  infraction  of  our  laws,  would  not  be  criminal  at  home.  It  is  not  averred  even 
that  the  defendants  bad  any  merchandise  at  all,  here  or  elsewhere  ;  and  unless  they  had  it, 
a  conspiracy  to  conceal  it  would  have  been  a  conspiracy  to  do  what  was  impossible.  It 
might  be  inferred  from  the  motive  imputed,  that  they  had  it;  but  Hawkins  says  (b.  2,c. 
25,  s.  60),  that  *  in  an  indictment,  nothing  material  shall  be  taken  by  intendment  or  im- 
plication.' Nor  are  all  the  creditors  named  whom  the  delendaiits  are  charged  with  having 
conspired  to  d<;fraud.  The  prosecutors  are  named  '  with  divers  other  persons'  not  named  ; 
but,  unless  the  additional  clause  were  rejected  as  surplusage  at  the  trial,  the  accused  would 
be  called  upon  to  d(;tc'nd  themselves  in  the  dark." 

(4).   Conspiracies  to  commit  breaches  of  the  peace. 

An  indictment  for  this  charact(;r  will  be  found  in  the  text,  and  perhaps  indirectly  within 
the  same  general  class  may  lie  rcgardi.'d  cases  which  will  be  subsequently  considered  ia 
another  relation,  viz.  cons|)iracies  to  hiss  an  actor  from  the  stage,  Clitford  v.  Brandon,  3 
Campb.  369,  and  to  prevent  by  violent  means  the  introduction  of  the  English  language  into 
a  church;  Com.  v.  Klierle,  3  S.  &,  R.  9. 

(5).   Conspiiacies  to  produce  ahorlian. 

Ojurits  falling  under  tliis  hi.ad,  which  were  sustained  by  the  Supreme  Court  of  Pennsyl- 
vania in  ('(Mil.  ii.  iJeinain,  (i  Pa.  1^.  J.,  will  appear  in  the  text.  In  consequence  of  the  immo- 
rality of  the  overt  act,  which  would  make  a  coiisjiiracy  to  commit  it  in  any  of  its  phases 
indictable,  it  is  anneeessary  to  aver  H(ic(:illeally  in  what  stage  of  pregnancy  was  the  mother, 
or  what  were  the  instruments  to  be  used.  Perhaps,  however,  if  the  cons|)iraey  was  unex- 
■ecutcd,  it  would  be  belter,  as  in  all  cases  of  unexecuted  conspiracies,  on  a  principle  which 
will  bf  discussed  more  fiilly  hereafter,  for  tire  grand  jury  to  aver  that  they  are  unable  to 
Si;t  out  the  partieiilars  of  tlic  plan,  bi'cujsc  it  was  never  carried  into  execution. 


CO\S:>IRACY. 


3:J9 


(G).  Conspiracies  to  publish  forged  notes. 

All  iridictinent  for  a  conspiracy  of  this  nature  was  sustained  in  Clary  v.  Com.,  4  Barr 
211),  and  will  a|)|)ear  liercaiter  in  the  text.  Such  an  indictment  on  the  authority  of  tiiis 
ca.st;  IS  fj-ood  where  the  bank  is  foreign  and  no  overt  act  is  stated. 

(7).  Seditious  conspiracies, 

'I'his  branch  of  conspiracies  will  be  fully  examined  under  the  head  of  treason  and  sedition. 

II.  Conspiracies  to  make  use  of  means  themselves  the  subject  of  indictment,  to  effect  an 
indifferent  object. 

'I'liis  class  is  here  separately  nienttoned  because  it  has  usually  been  plnced  under  a  dis- 
tinct head  hy  text  writers,  tliough  on  principle  it  is  ditticult  to  distinguish  it  from  cases 
wliere  an  oflence  conspired  to  be  committed  is  the  direct  and  immediate  object  of  the  con- 
spiracy. In  one  case  (he  defendants  conspire  to  commit  an  indictable  offence  for  the  sake 
oi' itsilf,  in  the  oilier  they  conspire  to  commit  it  lor  tiie  sake  of  some  other  object;  but 
where  the  cases  usually  put  under  the  first  head  are  analyzed,  they  will  be  found,  many  of 
tlu:m,  to  fall  under  the  second.  Thus  in  a  conspiracy  to  produce  the  marriage  of  a  young 
Woman  by  coercion,  to  procure  an  appointment  by  corruption,  to  make  a  clmnge  in  gov. 
ernment  by  seditious  means,  together  with  many  parallel  cases,  the  end  is  iiidirferent,  but 
liie  means  constitute  the  offence.  It  is  enough  to  say,  theretf)re,  that  as  the  conspiracy 
rests  in  each  case  on  the  alleged  indietability  of  the  constituent  misdemeanor,  such  mis- 
demeanor must  in  every  instance  be  expressed  with  the  same  degree  of  accuracy;  see  1 
Leach  3d;  3  Burr.  439;  1  VVils.  41  ;  8  Mod.  321. 

III.  Conspiracies  to  do  an  act,  the  commission  of  which  by  an  individual  is  not  indict- 
olilr,  but  the  commission  of  which  by  two  or  more  in  pursuance  of  a  previous  combination, 
is  calculated — 

1  St.    To  defraud  an  individual  by  fraudulent  and  indirect  devices  ;  Wh.  C.  L.  494,  et  seq. 

2d.  To  commit  an  iminoral  act,  such  for  instance  as  the  seduction  of  a  young  woman; 
IVA.  C.  L.  488. 

3d.  To  prejudice  the  public  or  the  government  generally,  as  for  instance,  by  unduly  ele- 
vating or  depressing  the  prices  of  wages,  of  toll,  or  of  any  merchantable  cotnmodily,  or  by 
defrauding  the  revenue;    Wh.  C.  L.  488,  et  seq. 

4th.  T'o  falsely  accuse  another  of  crime,  or  use  other  improper  means  to  injure  his  repu- 
tation, or  extort  money  from  him;    Wh.  C,  L.  486. 

5th.   To  impoverish  another  in  his  trade  or  profession  ;   Wh.  C.  L.  487,  et  seq. 

Cth.   To  pervert  the  course  of  justice. 

Indictments  falling  under  each  of  these  heads  will  be  found  in  the  text,  and  the  author- 
ities arising  under  them  will  be  presently  examined.  There  are,  however,  one  or  two 
general  principles,  extracted  from  the  authorities,  which  it  is  desirable  to  consider  in  advance. 

1.  Where  the  conspiracy  is  executed,  it  is  better  that  the  facts  should  be  stated  spe- 
cially, so  that  not  only  will  the  record  present  a  graduated  case  for  the  sentence  of  the 
court,  but  the  case  when  it  goes  to  the  jury,  will  not  be  open  to  the  objection  that  where 
the  grand  jury  have  it  in  their  power  from  the  examination  of  the  witnesses  for  the  prose- 
cution, to  find  specially  the  agency  through  which  the  conspirators  were  to  work,  they  con- 
fined themselves  to  a  general  finding  of  an  unexecuted  conspiracy.  It  is  not  pretended  that 
any  of  the  cases  go  so  far  as  to  prescribe  this  doctrine,  nor  is  it  denied  that  very  frequently,  es- 
pecially in  the  earlier  cases,  the  courts  sustained  counts  for  unexecuted  conspiracies  (e.g.  as 
in  cases  of  conspiracies  "  to  cheat"),  where  on  the  trial  it  turned  up  that  the  supposed  naked 
conspiracy  had  been  fully  executed,  and  had  resolved  itself  into  an  independent  misdemeanor. 
But  the  judges  have  lately  been  veering  to  the  doctrine,  as  will  presently  appear,  that  not 
only  ought  the  defendant  to  receive  all  practicable  notice,  but  that  between  an  attempt  or 
a  conspiracy  to  commit  an  offence,  and  the  offence  itself,  there  may  be  a  variance  ;  and  if 
so,  it  will  be  more  prudent  for  the  pleader  when  he  has  before  him  a  case  of  consummated 
conspiracy  to  commit  an  offence  not  per  se  indictable,  to  set  forth  the  facts  specially.  This 
is  fully  done  in  sonje  of  the  precedents  in  the  text,  especially  in  the  cases  arising  under  the 
Bank  of  the  United  States'  prosecutions  in  Baltimore.     (See  post,  p.  354). 

2.  Where  the  conspiracy  is  unexecuted,  and  nothing  more  is  likely  to  appear  in  evidence 
than  a  mere  undigested  confederacy  on  the  part  of  the  defiiidanls  to  do  the  particular  act, 
it  would  seem  |)rudenl  to  explain  the  fact  of  the  non-setting  out  of  the  features  of  the 
offence,  by  stating  that  it  never  was  consummated,  and  that  thereby  the  jury  were  uninformed 
of  its  particular  character.  Thus  for  instance,  after  considering  the  cases  which  will  pre- 
sently be  examined,  as  well  as  those  which  have  already  been  cited,  no  one  can  doubt  that 
a  conspiracy  to  cheat  A.  B.,  or  to  cheat  the  citizens  of  the  state  or  city,  is  indictable,  not- 
withstanding  there  is  nothing  disclosed  on  the  part  of  the  consi)irators  by  which  the  parti- 
cular agency  through  which  they  were  to  operate  can  be  pleaded.  But  in  the  recent  ca.-^e  of 
K.  V.  King,'7  A.  &,  E,  bU7,  Tindal  C.J.  very  pointedly  intimates  that  where  the  prosecutor 
is  shown  to  have  had  it  in  his  jtovver  to  describe  any  of  the  objects  of  the  conspiracy,  a 
failure  to  do  so  is  a  sensible  delect ;  and  the  leaning  of  his  leasoiihig  is  to  the  position  that 


340 


OFFEXCES  AGAIIVST  SOCIETY. 


where  a  material  gap  exists,  the  pleader  should  aver  specialty  the  reasons  why  the  des- 
cription of  the  offence  is  not  complete.  That  this  course  is  pursued  in  indictments  for 
forgery,  where  the  grand  jury  arc  unable  to  describe  the  possession  of  the  forged  instru- 
ment from  the  fact  of  its  loss  or  destruction,  is  shown  ante,  p.  132  ;  and  perhaps  the  same 
reasoning  applies  to  the  present  case  with  equal  exactness.  At  all  events,  it  would  seem 
more  prudent  in  cases  of  unexecuted  conspiracy,  wliere  the  object  is  a  thing  not  ;)er  se  in- 
dictable, to  excuse  by  proper  averments  the  non-setting  forth  of  the  ingredients  of  the 
offence.  Whenever  the  court  deem  it  necessary,  a  bill  of  particulars  will  be  ordered  which 
will  supply  tlie  defendant  with  the  facts  on  which  the  prosecution  rests  to  establish  the 
general  offence ;  see  R.  v.  Kcnrick,  per  Ld.  Denman  C.  J.,  post,  p.  344,  n.  (j).  (See  for 
Jorm  cf  same,  post,  p.  351,  n.  (n).) 

The  learning  on  the  subject  is  luminously  exposed  by  Shaw  C.  J.,  in  Com.  v.  Hunt,  4 
Mete.  1:25:  "Several  rules,"  he  said,  "upon  the  subject,  seem  to  be  well  established,  to 
wit,  that  the  unlawful  agreement  constitutes  the  gist  of  the  olTencc,  and  therefore  that  it  is 
not  necessary  to  charge  the  execution  of  the  unlawful  agreement;  Com.  v.  Judd,  2  Mass. 
337.  And  when  such  an  execution  is  charged,  it  is  to  be  regarded  as  proof  of  the  intent,  or 
as  an  aggravation  of  the  criminality  of  the  unlawful  combination. 

"Another  rule  is  a  necessary  conse(iuence  of  the  former,  which  is,  that  the  crime  is 
consumm^ale  and  complete  by  the  fact  of  the  unlawful  combination,  and,  therefore,  that  if  the 
execution  of  the  unlawful  purpose  is  averred,  it  is  by  way  of  aggravation,  and  proof  of  it 
IS  not  necessary  to  conviction  ;  and  therefore  the  jury  may  find  the  conspiracy,  and  nega- 
tive the  execution,  and  it  will  be  a  good  conviction.  • 

"And  it  follows  as  another  necessary  legal  consequence,  from  the  same  principle,  that 
tiie  indictment  must,  by  averring  the  unlawitil  purpose  of  the  conspiracy,  or  the  unlawful 
means  by  which  it  is  contemplated  and  agreed  to  accomplish  a.  lawful  purpose,  or  a  pur- 
pose not  of  itself  criminally  punishable,  set  out  an  offence  complete  in  itself  without  the 
aid  of  any  averment  of  illegal  acts  done  in  pursuance  of  such  an  agreement;  and  that  an 
iile<ral  combination,  imperfectly  and  insufficiently  set  out  in  the  indictment,  will  not  be 
aided  by  averments  of  acts  done  in  pursuance  of  it. 

"From  this  view  of  the  law  respecting  conspiracy,  we  think  it  an  offence  which  espe- 
cially demands  the  application  of  that  wise  and  humane  rule  of  the  common  law,  that  an 
indictment  shall  state,  with  us  much  certainty  as  the  nature  of  the  case  will  admit,  the 
facts  which  constitute  the  crime  intended  to  be  charged.  This  is  required  to  enable  the 
defendant  to  meet  the  charge  and  prepare  for  his  defence,  and,  in  case  of  acquittal  or  con- 
viction, to  show  by  the  record  the  identity  of  the  charge,  so  that  he  may  not  be  indicted 
a  second  time  for  the  same  offence.  It  is  also  necessary  in  order  that  a  person  charged 
by  the  grand  jury  for  one  offence,  may  not  substantially  be  convicted  on  his  trial  of  an- 
otiier.  This  fundamental  rule  is  confirmed  by  the  declaration  of  rights,  which  declares 
tiiat  no  subject  shall  be  held  to  answer  for  any  crime  or  offence  until  the  same  is  fully  and 
plainly,  substantially  and  formally  described  to  him. 

"  P'rom  these  views  of  the  rules  of  criminal  pleadings,  it  appears  to  us  to  follow,  as  a 
necessary  legal  conclusion,  that  when  the  criminality  of  a  conspiracy  consists  in  an  un- 
lawful agreement  of  two  or  more  persons  to  compass  or  promote  some  criminal  or  illegal 
purpose,  that  purpose  must  be  fully  and  clearly  stated  in  the  indictment;  and  if  the  crimi- 
nality of  the  otfence,  which  is  intended  to  be  charged,  consists  in  the  agreement  to  com- 
pass or  (iromote  some  [)urposc,  not  of  itself  criminal  or  unlawful,  by  the  use  of  fraud,  force, 
falsehood  or  other  criminal  or  unlawful  means,  such  intended  use  of  fraud,  force,  falsehood 
or  other  criminal  or  unlawful  means,  must  be  set  out  in  the  indictment.  Such,  we  think, 
is,  on  the  whole,  the  result  of  the  English  authorities,  although  they  are  not  quite  uniform ; 
1  East  P.  C.  461  ;  1  Stark.  C.  P.  1,  (2d  ed).  156  ;  opinion  of  Spencer,  senator,  U  Cow.  586, 
et  seq. 

"In  the  case  of  a  conspiracy  to  induce  a  person  to  marry  a  pauper,  in  order  to  change 
the  burden  of  her  su|)port  from  one  parish  to  another,  it  was  held  by  Buller  J.,  that,  as  the 
marriage  itself  was  not  unlawful,  some  violence,  fraud  or  falsehood,  or  some  artful  or  sin- 
isler  contrivanco  must  be  averrred,  as  the  nie;uis  inftMidcd  to  be  cm|)loyed  to  effect  the 
marriage,  in  order  to  make  the  agreement  indictable  as  a  conspiracy  ;  Kex  v.  Fowler,  2 
Russ.  on  Crimes  (1st  ed.)  1812;  S.  C.  1  East  P.  C.  461. 

"  Perhaps  the  cases  of  The  King  v.  Eccles,  3  Dougl.  337,  and  The  King  v.  Gill,  2  B.  & 
Al.  204,  cited  and  relied  on  as  having  a  contrary  tendency,  may  be  reconciled  with  the 
current  of  cases,  and  the  principal  on  which  they  are  founded,  by  the  fact,  that  the  court 
did  consider  that  the  indictment  set  fi)rtli  a  criminal,  or  at  least  an  unlawful  purpose,  and 
so  rendered  it  unnecessary  to  set  forth  the  means,  because  a  confederacy  to  accomjdish 
Kuch  i)uri>ose,  by  any  means,  must  be  considered  an  indictable  conspiracy,  and  so  the  aver- 
;nent  of  any  intended  means  was  not  necessary. 

"  With  these  general  views  of  the  law,  it  heeomes  nenessarv  to  consider  the  circum- 
Hl.inces  of  the  prc.-ent  case,  as  they  ajipear  fium  the  mdielmeiit  itstlf,  and  from  tlie  bill  of 
exceptions  filed  and  allowed. 


co\.'=;riitAcv.  311 

"  One  of  the  exceptions,  tliougii  not  tlie  first  in  tlie  order  of  time,  yet  by  far  tiic  most 
in)f)ortant,  was  this  : 

"The  counsel  for  the  defendants  contended  and  requested  the  court  to  instruct  the  jury 
that  the  indictment  did  nr)t  set  forth  anv  agreement  to  do  a  ccJniinal  act,  or  to  do  any 
lawful  act  by  any  specified  criminal  means,  und  tiiat  tlie  atrreement  therein  set  forth  did 
not  constitute  a  conspiracy  by  any  law  of  this  commonwealth.  But  the  judge  refused  so 
to  do,  and  instructed  the  jury  that  the  iiidietmeiit  did,  in  iiis  opinion,  describe  a  confede- 
racy among  the  defendants  to  do  an  unlawful  act,  and  to  etfeet  the  same  by  unlawful 
means;  that  the  society,  organized  and  associated  for  the  purposes  described  in  tlie  indict- 
ment, was  an  unlawful  conspiracy  against  the  laws  of  this  commonwealth  ;  and  that  if  tlie 
jury  believed,  from  the  evidence  in  the  case,  tliat  the  defendants  or  any  of  them,  liad  en- 
gaged in  such  a  confederacy,  they  were  bound  to  find  such  of  them  guilty. 

"In  setting  forth  specially  conspiracies  of  this  class,  enough  must  appear  to  enable  the 
court  to  determine  the  offence  to  be  contrary  to  the  jioliey  of  the  law. 

"  An  indictment  for  conspiracy  to  cheat  and  defraud  a  party  of  the  fruits  and  advantages 
of  a  verdict  obtained,  is  also  bad  for  generality;  R.  v.  Richardson,  1  M.  ifc  Rob.  402.  A  con- 
spiracy  'to  defraud  tlie  creditors  of  W.  E.'  is  too  general;  R.  v.  Fowle,  4  C".  &■  P.  492. 
Where  a  count  for  an  indictment  charged  the  defendants  with  conspiring  to  deceive  and 
defraud  divers  of  her  majesty's  subjects  who  should  bargain  with  them  for  the  sale  of  goods, 
of  great  quantites  of  such  goods,  without  making  payment  or  satisfaction  for  the  same,  with 
intent  to  obtain  profit  and  emolument  to  defendants  (not  stating  with  particularity  what 
the  defendants  conspired  to  do),  it  was  held  bad,  as  not  showing  that  the  conspiracy  was 
for  a  purpose  necessarily  criminal ;  R.  v.  Peck,  9  A.  &.  E.  6-56.  A  count  charging  that 
the  defendants,  being  indebted  to  divers  persons,  conspired  to  defraud  them  of  the  payment 
of  such  debts,  and  in  pursuance  of  such  conspiracy  executed  a  false  and  fraudulent  deed  of 
bargain  and  sale  and  assignment  of  certain- goods  from  two  of  themselves  to  a  third,  with 
intent  thereby  to  obtain  emoluments  to  themselves,  is  bad,  for  omitting  to  show  in  what 
respect  the  deed  was  false  and  fraudulent;  R.  ».  Peck,  9  A.  &.  E.  686.  An  indictment 
stating  merely  that  the  defendants  conspired  'by  false,  artful  and  deceitful  strntagems  and 
contrivances,  as  much  as  in  them  lay,  to  injure,  oppress,  aggrieve  and  impoverish'  the 
prosecutor,  was  too  general  and  indefinite  ;  R.  v.  Biers,  3  N.  &,  M.  475  ;  1  A.  &  E.  327,  S. 
C.  But  an  indictment  charging  that  the  defendants  conspired  '  by  divers  false  pretences 
and  subtle  means  and  devices,  to  obtain  and  to  acquire  to  themselves,  of  and  from  P.  D, 
and  C.  D.,  divers  lars;e  sums  of  money  of  the  respective  moneys  of  the  said  P.  D.  nndC.  D., 
and  to  cheat  and  defraud  tliem  respectively  thereof,'  was  held  sufficient,  lor  the  gist  of  the 
olfence  being  the  conspiracy,  if  that  fact  and  its  object  be  staled,  the  particular  means  and 
devices  need  not  be  set  out ;  R.  v.  Gill,  2  B.  &,  Al.  204.  A  count  for  a  conspiracy  which 
charged  that  T.  and  B.  conspired  to  cause  certain  goods  which  had  been  and  were  im|)nrted 
and  brought  into  the  poit  of  London,  from  parts  beyond  the  seas,  and  in  respect  whereof 
certain  duties  of  customs  were  then  and  there  due  and  payable  to  tlie  queen,  to  be  carried 
away  from  the  port  and  delivered  to  the  owners  without  payment  of  a  great  part  of  the 
duties,  with  intent  thereby  to  defraud  the  queen,  not  further  describing  the  goods  or  the 
means  of  effecting  the  object  of  the  conspiracy,  was  held  sufficient 'on  motion  in  arrest  of 
judgment;  Reg.  v.  Blake,  6  Q.  B.  R.  126.  So  an  indictment  charging  conspiracy  'to  de- 
traud  J.  VV.  of  divers  goods,  and  in  pursuance  of  the  conspiracy  defrauding  him  of  divers 
goods,  to  wit,  of  the  value  of  £100,'  is  good,  without  sfiecifying  such  goods  ;  1  Chit.  Rep. 
CJ8;  and  the  court  in  such  case  will  not,  according  to  the  P^nglish  practice,  call  upon  the 
prosecutor  to  deliver  a  particular  of  such  goods ;  and  an  indictment  for  conspiracy  to  de- 
fraud divers  persons  seems  sufficient  without  stating  their  names  ;  R.  v.  Biers,  I  A.  &.  E. 
337  ;  R.  V.  De  Berenger,  3  M.  &  S.  75  ;  3  N.  &  M.  475  ;  4  C.  P.  492.  The  third  count 
of  an  indictment  to  obtain  money  on  false  pretences,  charged  the  offence  in  general  terms 
OS  a  conspiracy  to  cheat  the  prosecutor  of  his  money,  without  setting  out  the  false  pre- 
tences. The  evidence  was  that  the  prosecutor  was  told  by  the  defendant  that  the  horses 
in  question  had  been  the  property  of  a  lady  deceased,  and  were  then  the  property  of  her 
sister,  and  never  had  been  the  property  of  a  horse-dealer,  ifcc.  All  these  statements  were 
false,  the  defendants  knowing  that  nothing  but  a  belief  of  their  truth  would  have  induced 
the  prosecutor  to  make  the  purchase.  The  cons[)iracy  was  proved ;  it  was  held  that  this 
count  was  sufficient,  and  that  it  charged  an  indictable  offence  ;  Reg.  v.  Kenrick,  12  Law 
J.  N.  S.,  M.  C.  135.  The  fourth  and  fitlh  counts  of  the  same  indictment  charged  the  ob- 
taining of  money  by  false  pretences;  the  evidence  was  that  the  defendant  in  order  to  induce 
the  prosecutor  to  make  the  contract  of  purchase,  made  the  tiilse  pretence  atbresaid  respect- 
ing the  horses  sold,  and  thereby  induced  him  to  buy ;  and  it  was  held  that  these  counts  were 
good,  and  that  the  liability  to  an  action  did  not  of  itself  furnish  any  answer  to  the  indict- 
ment; ib.  In  O'Connell's  case,  a  count  diarizing  in  substance  a  conspiracy  'to  cause  and 
p-MCure  divers  subjects  to  meet  together  in  large  nniiiliors,  for  the  unlawfiil  and  seditions 
purpose  of  obtaining  by  means  of  the  exhibition  and  demonstratiou  of  great  physical  ibrce 

29* 


3i2  OFFEXCES  AGAINST  SOCIETY. 

at  such  meetinjjs,  clianges  in  the  government,  laws  and  constitution  of  this  rcalin,'  was 
held  by  all  tiic  judircs  ntil  to  show  with  sufficient  certainty  the  object  of  the  defendants  to 
be  illegal  ;  IJ.  v.  O'Conncll,  11  CI.  «fc  Fin.  15;  i)  Jurist.  30.  So  in  Maryland,  an  indict- 
uient  charging  first,  an  executed  conspiracy,  falsely,  &.C.,  by  wronglul  and  indirect  means 
to  cheat,  defraud,  &c.,  the  Bank  of  the  United  States  ;  and  secondly,  charging  a  ci)nsf)iracy 
only  (as  before\  where  one  of  the  defendants  was  president  of  the  office  of  discount,  &c., 
of  the  bank,  and  another  the  cashier  of  the  oflicc,  and  another  a  director  of  the  mother 
bank,  was  held  to  allege  sufficiently  in  each  count,  a  punisiuible  conspiracy  at  common 
law  ;  State  v.  Buchanan,  5  flar.  &  J.  317.  The  same  doctrine,  in  two  instances,  was  held 
in  Pennsylvania ;  Collins  v.  Com.,  3  S.  &.  R.  2:20;  Com.  v.  M'Kisson,  8  S.  &  R,  420.  But 
the  case  which  goes  further  is  one  in  Pennsylvania,  in  which  the  Supreme  Court  sustained 
a  count  which  merely  averred  that  the  defendants  conspired  '  to  cheat  and  defraud  J.  S. 
of  the  aforesaid  heifer.'  'There  may  be  confederacies,'  said  Gibson  J.,  in  giving  the  opi- 
liion  of  the  court,  'which  are  lawful,  and  you  must  therefore  set  forth  some  object  of  the 
confederates  which  it  would  be  unlawful  for  them  to  attain  cither  singly,  or  which, 
if  lawful  singly,  it  would  be  dangerous  to  the  public  to  permit  to  be  attained  by  the  com- 
bination of  individual  means;  for  it  is  the  object  that  imparts  to  the  confederacy  its 
cliaracter  of  guilt  or  innocence;  and  of  the  nature  of  each  object,  and  the  bearing  which 
the  various  kinds  of  it  may  have  on  the  question  in  diffi'rent  cases,  it  is  at  present  neces- 
sary  to  say  no  more  than  that  where  it  is  the  doing  of  an  act  which  would  be  indictable, 
it  would  undoubtedly  render  the  confederacy  criminal.  But  in  stating  the  object,  it  is 
unnecessary  to  state  the  means  by  which  it  is  to  be  accomplished,  or  the  acts  that  were  to 
be  done  in  pursuance  of  the  original  design  ;  they  may  in  fact  not  have  been  agreed  on. 
You  need  not  set  fortii  more  of  the  object  than  is  necessary  to  show  it  from  its  general 
nature,  to  be  unlaw'ful ;  for  that  is  all  that  is  necessary  to  determine  the  character  of  what 
is  in  truth,  essentially  and  exclusively  the  crime,  the  confederating  together  ;  and  this  is 
proved  by  the  precedents  produced  on  the  part  of  the  commonwealth  ;'  Com.  v.  M'Kisson, 
8  S.  &  R.  420." 

Where  the  act  only  becomes  illegal  from  the  means  used  to  effi:ct  it,  so  much  must  he 
stated  as  will  show  its  illegality,  and  charge  the  defendant  with  a  substantive  olFence.  In 
an  indictment  for  a  comhination  to  marry  paujjcrs,  in  order  to  throw  the  burthen  of  main- 
taining them  on  another  parish,  it  is  necessary  to  show  that  some  threat,  promise,  bribe  or 
other  unlawful  device  was  used,  because  the  act  of  marriage  being  in  itself  lawful,  the 
procuring  it  requires  this  explanation  in  order  to  he  charged  as  a  crime;  I  A.  &.  E.  706, 
S.  C;  R.v.  Fowler,  I  East's  P.  C.  461,  462 ;  R.  v.  Seward,  3  N.  &  M.  557.  In  such  case 
it  is  essential  to  show  the  intent  of  the  combination,  by  stating  that  the  husband  was  a 
pauper,  and  the  wife  legally  settled  in  the  parish  from  which  she  was  taken  ;  R.  v.  Tanner, 
1  Esp.  Rep.  306,  307 ;  R.  v.  Edwards,  8  Mod.  320. 

Where  an  indictment  charged  the  defendants  with  conspiring  to  cause  goods  which  had 
been  imported,  &c.,  and  in  respect  of  which  certain  duties  of  customs  were  payable  to  the 
queen,  to  be  carried  away  from  port  without  payment  of  duties,  with  intent  to  defraud  the 
queen  in  her  revenue  of  customs,  and  there  were  also  counts  charging  the  defendants 
generally,  with  conspiring"to  defraud  the  queen  of  duties,  by  false  and  fraudulent  repre- 
sentations of  the  value  and  nature  of  the  goods  ;  it  was  held,  that  the  gist  of  the  indict- 
ment being  the  conspiracy,  the  indictment  was  sufficiently  certain,  without  showing 
what  the  goods  were,  or  what  duties  were  payable  on  them  ;  R.  v.  Blake,  13  Law  J.  N. 
S.,  M.C.I  31. 

{g)  It  is  important  to  set  forth  the  names  of  the  parties  to  he  injured,  unless  a  good  rea- 
son be  given  i'ov  their  non-s[)ecificaiion.  Thus  in  I{.  v.  King,  7  A.  &  E.  806,  'J'indal  C. 
J.,  said  :  '-The  second  and  more  important  objection  was,  that  the  indictment  itself  was 
bad;  and  wc  arc  all,  upon  consideration,  of  opinion  that  this  objection  must  [irevail.  Mr. 
Pashley  for  the  plaintiffs  in  error,  argued  tiiat  the  indictment  was  bad  becaysc  it  contained 
a  delijctive  statement  of  the  charge  of  cons[)iracy  ;  and  we  agree  that  it  is  defective.  The 
'charge  is,  that  the  defendants  below  conspired  to  cheat  and  defraud  divfis  liege  subjects, 
being  tradesmen,  of  their  goods,  &c. ;  and  the  objection  is  that  these  persons  should  have 
been  designated  by  their  christian  and  surnames,  or  an  excuse  given,  such  as  that  their 
names  are  to  the  jurors,  unknown  ;  because  this  allegation  imports  that  the  intention  of 
the  conspirators  was  to  cheat  certain  indefinite  in(ii\  iduals,  wlio  must  always  be  described 
by  a  narru;  or  a  reason  given  why  they  are  not ;  and,  if  the  conspiracy  was  to  cheat  in- 
definite individuals,  as  for  instance  those  wiiom  they  should  allerwards  deal  with  or  after- 
wards  fix  u[)on,  it  ought  to  have  been  dej-cribcd  in  appro])riatc  terms,  showing  that  the  ob- 
jects of  the  cons[)iracy  were,  at  the  tinie  of  making  it,  unascertained,  as  was  in  fact  done 
in  tlie  case  of  Hex  v.  l)e  Fk-rcnger,  3  M.  iNc  S.  67,  and  The  Queen  v.  Peck,  9  A.  «fe  E.  686 ; 
and  it  was  .■irgucd  that,  if,  on  the  trial  of  this  indictment,  it  had  appeared  that  the  inten- 
tion was  not  to  clieat  eirlain  detinite  iiidi\  iduals,  Itut  such  as  the  conspirators  should 
afterwards  trade  with  or  select,  they  would'  have  been  entitled  to  an  acquittal ;  and  we  all 
airree  in  lliis  vi,.-vv  of  Hie  cAsc,  and  tliink  tiiat  the  reusoua ussig-ncU  against  the  Vi.liuily  oi 
this  partof  the  iridictmont  aio  correct." 


CONSPIRACY.  343 

Conspiracy  to  rob. 

That  defendants  being  persons  of  evil  minds  and  dispositions  (with 
divers  others,  &c.),  on,  &c.,  at,  &c.,  unlawfaily  and  wickedly  did  con- 
spire, combine,  confederate  and  agree  together  in  and  upon  one  A.  B., 
ill  the  peace  of  God  and  of  the  commonwealth  then  and  there  being, 
feloniously  to  make  an  assault,  and  him  the  said  A.  B.  in  bodily  fear 
and  danger  of  his  life  then  and  there  feloniously  to  put,  and  the  goods 
and  chattels,  moneys  and  property  of  the  said  A.  B.,  from  the  person 
and  against  the  will  of  the  said  A.  B.,  "then  and  there  feloniously  and 
violently  to  steal,  take  and  carry  away,  to  the  evil  example,  &c. 

Conspiracy  to  murder,  icith  an  attempt  to  induce  a  third  party  to  take 
part  in  the  sa?ne.{i) 

That  II.  D.,  late  of,  &c.,  and  J.  S.,  late  of,  &c.,  not  having  the  fear 
of  God  before  their  eyes,  but  being  moved  and  seduced  by  the  insti- 

(/()  It  is  usual  to  set  out  the  overt  acts,  that  is  to  say,  those  acts  wliich  may  have  been 
clone  by  any  one  or  more  of  tiic  conspirators,  in  pursuance  of  the  conspiracy,  and  in  order 
to  effect  tlie  common  purpose  of  it;  but  this  is  not  absolutely  requisite,  if  the  indictment 
chargfc  what  is  in  itself  an  unlawful  conspiracy;  R.  v.  Seward,  1  A.  &  E.  706;  3  N.  &. 
M.  537,  S.  C.  ;  and  see  R.  v.  Gill,  2  B.  &  Al.  204 ;  1  East  P.  C.  461.  The  offence  is  com- 
plute  on  tiic  consummation  of  the  conspiracy,  and  the  overt  acts,  though  it  is  the  practice 
to  set  thein  forth,  may  be  either  regarded  as  matters  of  aggravation,  or  discharged  as  surplus- 
age; O'C'onnell  v.  R.,  11  CI.  ifc  Fin.  15 ;  Collins  v.  Com.,  3  S.  &  R.220 ;  State  v.  Buchanan, 
5  Har.  &  J.  317  ;  State  v.  Cawood,  2  Stew.  360. 

flow  far  the  overt  acts  can  be  taken  in  to  aid  the  charging  part,  was  considered  by 
Tindal  C  J.,  in  the  Exchequer  Chamber,  in  King  v.  R.,  7  A.  &  E.  807. 

"  But  it  was  then  urged  by  the  learned  counsel  for  the  crown  that,  supposing  these  ob- 
jections to  be  well  founded,  this  defect  in  tiie  allegation  of  the  conspiracy  was  cured  by 
referring  to  the  whole  of  the  indictment,  the  part  stating  the  overt  acts  as  well  as  that 
stating  the  conspiracy  ;  and  Rex  v.  Spnigge,  2  Burr.  999,  was  cited  as  an  authority,  that 
the  whole  ought  to  be  read  together.  Tlie  point  decided  in  that  case  appears  to  have  been 
merely  this,  tliat,  in  an  indictment  for  a  conspiracy,  thougii  the  conspiracy  be  insufficient- 
ly charged,  yet,  if  the  rest  of  the  indictment  contains  a  good  charge  of  a  misdemeanor,  the 
indictment  is  good.  Ld.  ^lansfield  distinguishes  between  the  allegation  of  the  unexecuted 
conspiracy  to  prefer  an  indietmeni,  as  to  tlie  sufficiency  o("  which  he  gave  no  opinion,  and 
that  of  the  actual  preferring  of  the  indictment  maliciously  and  without  probable  cause,, 
vviiich  he  calls  a  completed  conspiracy  actually  carried  into  execution  ;  and  this  he  holds 
to  be  clearly  sufficient;  and  no  doubt  it  was  so;  for,  rejecting  the  averment  of  the  un- 
executed conspiracy,  the  indictment  undoubtedly  contained  a  complete  description  of  a 
common  law  misdemeanor ;  King  v.  R.,  7  A.  &  E.  806,  808. 

"But  if  we  examine  the  allegations  in  this  indictment,  there  is  no  sufficient  description 
of  any  act,  done  after  the  conspiracy,  which  amounts  to  a  misdemeanor  at  common  law. 
None  of  the  overt  acts  are  shown  by  proper  averments  to  be  indictable.  The  obtaining 
goods,  for  instance,  from  certain  named  individuals  upon  credit,  without  any  averment  of 
the  use  of  false  tokens,  is  not  an  indictable  misdemeanor;  and,  if  it  is  that,  l>ecause  it  is 
averred  to  have  been  done  in  pursuance  of  the  conspiracy  before  mentioned,  it  must  be 
taken  to  be  an  equivalent  to  an  averment  that  the  cons])iracy  was  to  cheat  the  named  in- 
dividuals of  their  goods;  the  answer  is,  first,  that  it  does  not  necessarily  follow,  because 
the  goods  were  obtained  in  pursuance  of  the  conspiracy  to  cheat  some  ()ersons,  that  the 
conspiracy  was  to  cheat  the  persons  from  whom  the  goods  were  obtained  ;  they  might 
have  been  obtained  from  A.,  in  the  execution  of  an  ulterior  jjurpose  to  cheat  B.  of  his 
goods.  And,  secondly,  another  answer  is,  that,  if  the  averment  is  to  be  taken  to  be  equiva- 
lent  to  one,  that  the  goods  were  obtained  from  the  named  individuals  in  pursuance  of  an 
illegal  consi)iracy  to  clieat  and  defraud  those  named  individuals  of  their  goods,  it  would 
still  be  defective  as  not  containing  a  direct  and  positivp  averuu  iit  that  lie  did  conspire  to 
clieat  and  defraud  those  persons,  which  an  indictment  for  a  cons|)iracy,  where  the  eonspi- 
racy  itself  is  the  crime,  ought  certainly  to  contain.  The  aveimeut  describing  the  otilnce 
oUL'hf  to  be  direct  and  p'i«it'vc." 

(!)  i'rum  .Mr.  Biadford's  p)i.i:edents. 


344  OFFE.N'CES  AGAINST  SOCIETY. 

gations  of  the  devil,  oti,  &c.,  at,  &c.,  did  intend,  combine,  conspire  and 
agree  together  a  certain  F.  M.,  in  the  peace  of  God  and  this  conimon- 
weahh  then  and  there  being,  feloniously  to  kill  and  murder;  and  the 
jnrors  aforesaid,  upon  their  oaths  and  affirmations  aforesaid,  do  fur- 
ther present,  that  the  said  H.  D.  and  J.  S.,  in  the  prosecution  of  such 
their  wicked  and  diabolical  intention  and  agreement,  at  the  day  and 
year  aforesaid,  at  the  county  aforesaid,  and  within  the  jurisdiction 
aforesaid,  did  labour,  instigate,  solicit,  entice  and  endeavour  to  per- 
suade a  certain  T.  0.  to  aid,  assist  and  abet  them  the  said  H.  and  J. 
in  accomplishing  and  fulfilling  their  said  wicked  intentions,  and  in 
the  felony  and  murder  by  them  intended  to  be  committed.  And  the 
jurors  aforesaid,  upon  their  oaths  and  athrmations  aforesaid,  do  fur- 
ther present,  that  the  said  H.  D.,  on  the  day  and  year  aforesaid,  at 
the  county  aforesaid,  and  within  the  jurisdiction  of  this  court,  in  the 
lurther  prosecution  of  such  his  wicked  intentions  aforesaid,  did  offer 
and  promise  to  give  unto  the  said  T.  0.,  a  new  suit  of  wearing  ap- 
|)arel  and  six  hundred  dollars,  if  he  the  said  T.'would  admit  liim  the 
said  H.,  secretly  and  in  the  night  time,  into  the  dwelling  house  of  the 
said  F.  M.,  that  he  the  said  H.  might  then  and  there  feloniously  kill 
and  murder  the  said  F.  M.,  to  the  evil  example,  &c.,  and  against, 
&c.     [Conclude  as  in  book  1,  chap.  3). 

Conspiring  to   cheat  "prosecutor  by  clivers  false   pretences  and   subtle 
means.     First  count.{j) 

That  T.  K.  the  elder,  late  of,  &c.,  horse-dealer,  and  T.  K.  the 
younger,  late  of,  &c.,  horse-dealer,  being  evil  disposed  persons,  and 

ij)  R.  V.  Kenrick,  5  A.  &  E.  N.  S.  49.  This  count,  which  is  substantially  the  same 
with  that  of  R.  c.  Gill,  2  B.  &.  Al.  204,  is  fully  discussed  in  the  note  at  the  foot  of  page 
334.  In  the  present  case,  Ld.  Denman  said:  "  TJiis  was  an  indictment  for  a  conspiracy, 
containing  five  counts.  Of  these  tlic  two  last  were  given  up  by  tlie  counsel  for  the  prose- 
cution, on  account  of  an  objection  wholly  unconnected  with  that  made  to  the  others  now 
to  be  considered.  The  third  ran  in  the  tbilowing  tbrm.  (His  lordship  then  read  the  third 
count).  The  fourth  and  fiflh  charged  the  defendants  with  obtaining  money  by  false  pre- 
tences, which  were  set  forth. 

"  It  was  contended,  in  the  first  place,  that  the  third  count  was  bad  by  reason  of  uncer- 
tainty, as  giving  no  notice  of  the  oti'ence  ciiarged.  The  whole  law  of  eons])iracy,  as  it 
Ikis  been  administered  at  least  for  the  last  hundred  years,  has  been  thus  called  in  question  ; 
for  we  have  sufficient  proof  tliat  during  that  period  any  combination  to  prejudice  another 
unlawfully,  has  been  considered  as  constituting  the  offence  so  called.  The  offence  has 
been  iieid  to  consist  in  the  coiisjiiracy,  and  not  in  the  facts  committed  for  carrying  it  into 
effect ;  and  tlie  ciiargc  has  been  held  to  be  sufficiently  made  in  general  terms  describing 
an  unlawful  conspiracy  to  cff(;ct  a  bad  purpose. 

"'I'iiis  form  of  indictment  was  formally  questioned  in  Rex  r.  Gill,  2  B.  &.  Al.  204,  and 
was,  u[)on  discussion,  held  good;  nor  has  that  decision  been  overruled.  The  indictment 
in  Rex  V.  Kccles,  slated  in  a  note  there,  is  equally  general. 

"There  have  not  been  wanting  occasions  when  learned  judges  have  exjiresscd  regret 
that  a  cliarge  so  little  calculated  to  inform  a  defendant  of  tlu;  facts  intended  to  be  proved 
upon  him,  sliould  be  considered  by  the  law  as  well  laid.  All  wlio  have  watclied  the  pro- 
ceedings of  courts  are  aware  that  there  is  danger  of  injustice  from  calling  for  a  defence 
against  so  vague  an  accusation;  and  judges  of  high  authority  have  been  desirous  of  res- 
training its  generality  within  some  reasonalile  bounds.  The  ancient  form,  however,  has 
kept  its  pi  lec,  and  the  expedient  now  ciiiploycd  in  ]>riie1ice  of  furnishing  dcli'ndanls  with 
a  |iarlif;ular  of  the  acts  cliargc^d  ujion  them,  is  probably  cireetual  lor  pn  venting  surprise 
and  unfair  advantages.  Doubts  have  also  been  expressed  iiow  far  an  iiidietmcnt  tor  eon. 
8|)iracy  may  be  maintained  where  the  oi)jeet  of  il  was  of,a  very  trivial  nature,  or  wliere 
tip.  whole  mailer  might  be  ihoughl  to  sound   in  dani.igr,  not  in  crime.     Ld.  l^llenborough 


CONSPIRACY.  345 

seeking  to  get  their  living  by  various  subtle,  fraudulent  and  dishonest 
l)ractises,  on,  &c.,  with  force  and  arms,  at,  &c.,  together  with  divers 
other  evil  disposed  persons,  unlawfully,  fraudulently  and  deceittully 
did  combine,  conspire,  confederate  and  agree  together,  by  divers  talse 
pretences  and  subtle  means  and  devices  to  obtain  and  acquire  to 
themselves,  of  and  from  one  G.  W.  F.,  divers  large  sums  of  money, 
of  the  moneys  of  the  said  G.  W.  F.,  and  to  cheat  and  defraud  hmi 
thereof,  to  the  great  damage  of  the  said  G.  W.  F.,  to  the  evil  example, 
&c,,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count. 

Like  the  first,  except  that  the  conspiracy,  S^-c,  ivas  alleged  to  be 
"to  obtain  and  acquire  to  the  said  T.  K.  the  elder"  (only),  of  and 
from  the  said  G.  W.  F.,  &c.  • 

Third,  count. 

{Like  the  second,  only  substituting) :  "  T.  K.  the  younger,"  for 
"T.  K.  the  elder." 

Conspiracy  to  defraud  by  means  of  false  pretences  and  false  urilings 
in  the  form  and  similitude  of  bank  notes;  the  overt  act  being  the  utter- 
ing a  note  purporting  to  be  a  promissory  note,  ^-c,  and  to  have  been 
signed,  ^^c.{h) 

That  the  defendants  on,  &c.,  at,  &c.,  falsely,  unlawfully  and 
wickedly  did  conspire,  combine,  confederate  and  agree  among  them- 

in  Rex  r.  Turner,  13  East  228,  would  not  permit  parties  to  be  convicted  of  a  conspiracy 
for  effecting  so  slight  an  object  as  a  trespass  by  following  the  game  on  another's  land. 
The  same  learned  judge,  in  Rex  v.  Pywell,  1  Stark.  N.  P.  C.  402,  stopped  the  case  on  the 
trial  of  an  indictment  for  a  conspiracy,  where  the  fraud  to  be  accomplished  appeared  to  be 
such  as  would  more  properly  be  the  foundation  of  a  civil  action  on  the  warranty  of  a  horse. 
But  if,  in  the  case  of  Rex  v.  Turner,  13  East  228,  the  meditated  injury,  instead  of  ending 
with  a  trespass,  had  been  planned  for  the  purpose  of  seizing  the  land-owner,  or  driving  him 
from  the  country,  we  have  no  reason  to  think  that  the  learned  judge  would  have  condemned 
an  indictment  for  a  conspiracy  to  effect  that  object.  In  the  case  of  Rex  v.  Pywell,  1  Stark. 
N.  P.  C.  402,  the  acquittal  was  directed,  not  because  an  action  might  have  been  brought 
on  a  warrant),  but  because  one  of  the  two  defendants,  though  acting  in  the  sale,  was  not 
shown  to  have  been  aware  that  a  fraud  was  practised.  His  lordship  said, '  that  no  indict- 
ment in  a  case  like  this  could  be  maintained  without  evidence  of  concert  between  the  par- 
ties to  effectuate  a  fraud.'  Ld.  Tenteiden  also  is  supposed  to  have  thrown  some  doubt  on 
the  common  form  of  indictment  for  conspiracy  in  Rex  v.  Fowle,  4  C.  &  P.  592  ;  but  the 
indictment  there  departed  from  tlie  common  form,  charging  a  conspiracy  'to  cheat  and 
defraud  the  just  and  lawful  creditors'  of  F.,  but  not  saying,  'of  their  moneys,'  or  of  any 
thing.  This  objection  could  not  have  escaped  that  learned  judge,  though  two  others  only, 
and  those  less  weighty,  are  ascribed  to  him  by  the  reporter;  that  it  does  not  state  what 
was  to  be  done,  or  who  was  to  be  defrauded.  Even  that  indictment,  however,  he  permit- 
ted to  be  tried  ;  and  the  defendants  were  acquitted  for  want  of  evidence.  If  they  had  been 
convicted,  and  the  judgineirt  arrested,  the  case  of  Rex  v.  Gill,  2  B.  &  Al.  204,  would  have 
remained  untouehJd.  Nor  does  Ld.  Tenlerden  say  anything  which  indicates  his  dissatis- 
faction  with  it.  The  indictments  in  Rex  v.  Richardson,  1  M.  &.  Rob.  402,  and  Regina  r. 
Peck,  9  A.  &  E.  6?6,  which  were  held  bad,  were  satisfactorily  distinguished  in  the  argu- 
mcnt,  from  that  in  Rex  v.  (Jill,  2  B.  &  Al.  204." 

{k)  Collins  V.  Com.,  3  S.  cSi  F{.  220. 

Tilglmian  C.  J. :  "  It  is  said,  that  it  is  no  offence,  to  conspire  to  defraud  people  by  notes 
purponing  to  have  been  promissory  notes,  and  to  have  been  signed,  6cc.;  because  nobody 
could  be  im|)osed  on,  unless  the  note  purported  to  be  a  promissory  note  at  the  lime  of  pass- 
ing it.  This  is  a  nice  distinction.  It  would  havo  been  more  proper  to  have  said,  purport- 
ing  to  be  a  promi.ssory  note,  &.c. ;  but,  as  to  tlie  expressions,  to  have  been  signed,  &e.,  they 
aie  strictly  proper,  because  the  act  of  siuning  was  prcvimis  to  the  act  of  passing,  and 
therelbrc.'when  passed,  the  notes  did  in  truth  purport  to  have  been  signed.     But  there  are 


31G 


OFFEVCES  AGAIXST  SOCIEXy. 


selves  to  deceive  and  defraud,  and  to  cause  to  be  deceived  and  de- 
frauded, divers  of  the  citizens  of  the  Commonweahh  of  Pennsylvania, 
of  great  sums  of  money,  by  means  of  false  pretences  and  false,  illegal 


other  expressions  charging- an  unlawful  conspiracy ;  the  plan  is  described,  as  an  agree- 
inent,  confederacy,  »fcc.,  to  defraud  by  means  of  false  pretences  and  false  writings,  in  the 
form  and  similitude  of  bank  notes,, &.C.,  so  that  upon  the  whole,  it  sufficiently  appears,  tliat 
there  was  an  unlawful  conspiracy.  Besides,  tlie  overt  act  is  charged  with  strict  propriety; 
tlie  note  uttered  and  paid  to  Preston,  is  described  as  purporting  to  be  a  promissory  note, 
6cc.,  and  to  have  been  signed,  &c.  But  it  is  objected,  that  the  passing  of  this  note  was  the 
act  of  Collins  alone,  for  which  the  other  defendants  are  not  answerable.  It  would  liavo 
been  so,  had  it  not  been  done  in  pursuance  of  tiie  project  in  which  they  were  all  engaged  ; 
but  it  is  laid  in  the  indictment  as  having  been  done,  '  according  to  and  in  pursuance  of  the 
conspiracy,  combination,  confederacy  and  agreement  among  themselves  had,  as  aforesaid,' 
isic.  The  act  of  one,  therefore,  is  to  be  considered  as  the  act  of  all.  It  is  also  objected, 
tliat  it  does  not  appear  that  Preston  was  defrauded  of  any  money,  or  other  property.  That 
is  of  no  importance,  the  note  was  paid  to  him  for  the  purpose  of  defrauding  him,  which 
makes  the  offence  complete,  whether  he  was  actually  defrauded  or  not." 

Gibson  J. :  "  In  this  indictment  tlie  fact  of  confederating  is  the  gist  of  the  offence.  The 
overt  acts  charged  to  have  been  done  in  pursuance  of  the  conspiracy,  are  only  matters  of 
aggravation,  and  not  necessary  to  the  consummation  of  the  crime;  which  would  be  well 
l;iid  if  all  the  overt  acts  were  omitted.  If  this  were  an  indictment  for  cheating,  instead  of 
conspiring  to  cheat,  the  argument  in  behalf  of  the  defendant  below,  might  possibly  have 
weight:  but  I  am  not  aware  tliat  in  a  case  like  the  present,  it  is  at  all  necessary  to  set 
out  the  false  tokens  or  pretences  with  which  the  cheat  was  intended  to  be  effected.  A  con- 
f(  deracy  to  cheat,  generally,  would  be  indictable  before  any  means  should  be  devised  to 
carry  the  unlawful  purpose  into  execution;  Regina  v.  Best,  2  Ld.  Raym.  1167.  And 
vhere  the  act  is  unlawful,  tliere  is  no  occasion  to  state  the  means  by  which  it  is  to  be 
effected  ;  but  where  it  only  becomes  illegal  from  the  means  employed  to  execute  it,  so 
much  must  be  stated  as  will  show  its  illegality.  In  the  Crown  Circuit  Companion,  there 
is  a  precedent  of  an  indictment  against  the  curate  and  officers  of  a  parish,  for  a  conspiracy 
to  cheat  sufferers  by  fire,  out  of  money  collected  by  a  brief  for  tlieir  use ;  in  which  the 
fraudulent  intent  is  stated  generally,  without  specifying  any  preconcerted  means  of  carry. 
ing  it  into  effect.  And  in  .3  Chitty's  Criminal  Law  615,  there  is  a  count  for  a  general  con- 
spiracy to  defraud,  without  stating  any  overt  act.  But  if  it  were  necessary  to  set  forth  the 
nature  of  the  false  pretences,  this  indictment  contains  a  sufficient  description  of  them,  even 
if  the  part  objected  to  were  struck  out.  To  say  that  the  defendant  defrauded  '  divers  of 
tlie  citizens  of  Pennsylvania  of  great  sums  of  money,  by  means  of  false  pretences,  and  false, 
illegal  and  unauthorized  paper  writings,  in  the  form  and  similitude  of  bank  notes,  which 
jiiper  writings  were  of  no  value,'  would  be  a  sufficient  description  of  the  false  pretences, 
in  an  indictment  for  cheating.  But  it  is  objected,  that  these  writings  are  further  described 
as  purporting  to  have  been  promissory  notes  for  the  payment  of  money,  and  to  have 
heen  signed,  &,e.,  without  any  averment  that  they  were  so  at  the  time  the  confederacy 
was  formed;  and,  consequently,  that  it  does  not  appear  that  those  writings,  unaided 
by  false  representation,  could  be  effectual  instruments  in  the  execution  of  thd  frau- 
diilent  design,  wliicli,  if  efiected  by  a  naked  lie,  would  not  be  indictable  as  a  che.at. 
But  that  conclusion  does  not  follow.  A  counterfeit  bank  note,  although  without  a  signa- 
nature,  and,  although  it  should  not  strictly  purport  to  be  a  promissory  note  for  the  pay- 
ment of  money,  may,  very  rendily,  be  the  successful  means  of  perpetrating  a  fraud  on  the 
tmwary,  who  are  as  much  under  the  protection  of  the  law  as  the  most  acute.  In  Gover's 
c.ise,  Sayer  Rep.  206,  the  defendant  was  indicted  for  cheating,  by  assuming  the  character 
of  a  merchant,  and  producing  'to  I.  S.  several  paper  writings,  which  he  falsely  affirmed  to 
be  letters  f>om  Spain,  containing  eominissions  for  jewels,  Sec,  to  the  amount  of  ^4000, 
by  means  whereof  he  got  into  his  hands  two  watclies,  the  property  of  I.  S.,'  without  any 
distinct  averment  that  the  pa|)er  writings  pur/mrlcd  to  be  such  ;  and  it  was  held  good.  But 
taking  it  thai  the  law  would  be  otherwise,  if  this  were  an  indietinent  for  cheating,  would 
a  conspiracy  be  less  criminal  in  legal  estimation,  beeauso  the  means  nfireed  on  to  carry 
the  unlawful  design  into  execution,  were  not  like  to  prove  clfectual !  It  is  no  excuse  for 
:i  conspiracy  to  carry  on  a  malicious  prosecution,  that  the  indictment  was  defective,  or  that 
the  court  before  whom  it  was  found,  li ad  no  jurisdietion  ;  although,  in  either  case,  the  de- 
frndant  n{;v(T  was  in  jeopardy;  Hawk.  b.  1,  c.  72,  s.  3.  The  devising  of  means  is  not  a 
coiiHtituent  i)art  of  the  offence,  but  an  act  done  in  pursuance  of  the  original  df^sijrn.  This 
ri  mark  also  applies  to  the  remaining  objections,  which  relale  to  the  maimer  of  seiliiio-  Ibith 
a  variety  of  instances  of  fraud,  actually  perpetrated  l)y  means  of  the  siiuul..led  paper  writ- 


COXSriRACY. 


347 


and  nnantliorized  paper  writitigs  in  the  form  and  similitude  of  bank 
notes,  which  said  paper  writings  were  of  no  value,  and  purported  to 
have  been  promissory  notes,  bearing  different  dates,  for  the  payment 
of  divers  sums  on  demand,  by  the  Ohio  Exporting  and  Importing 
Company,  at  their  bank  in  Cincinnati,  and  to  have  been  signed  by 
Z.  S.  as  president,  and  J.  L.  as  cashier;  when  in  verity  and  in  truth, 
no  such  banking  company  existed,  and  that  according  to  and  in  pur- 
suance of  the  conspiracy,  combination,  confederacy  and  agreement 
among  themselves  had  as  aforesaid,  the  said  T.  C.  afterwards  did 
fraudulently,  unlawfully  and  deceitfully  offer  and  pay  to  one  J.  P., 
for  the  purpose  of  deceiving  and  defrauding  him  the  said  J.,  for  and 
as  a  good,  genuine  and  lawful  bank  note,  one  of  the  aforesaid  false, 
illegal  and  unauthorized  paper  writings,  in  the  form  and  similitude 
of  a  bank  note,  partly  written  and  partly  printed,  purporting  to  be  a 
promissory  note  for  the  payment  of  ten  dollars  by  the  Ohio  Exporting 
and  Importing  Company,  to  N.  W.,  or  bearer,  on  demand,  at  their 
bank  in  Cincinnati,  bearing  date  the  fifteenth  day  of  January,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  sixteen,  and  to 
have  been  signed  by  Z.  S.  as  president,  and  J.  L.  as  cashier,  he  the 
said  T.  C.  did  then  and  there,  to  wit,  on,  &c.,  well  knowing  that  no 
such  bank  existed  at  Cincinnati  or  elsewhere,  as  the  Ohio  Exporting 
and  Importing  Company,  and  that  the  said  note  purporting  to  be  a 
bank  note  issued  by  the  said  company,  was  of  no  value,  &c. 

Conspiracy  to  cheat  prosecutor  by  inducing  him  to  buy  a  bad  note. 

That  B.,  late  of  and  W.,  late  of  &c.,  being  persons  of 

wicked  and  fraudulent  minds  and  dispositions,  and  wickedly  devising 
and  intending  to  cheat  and  defraud  the  said  0.  D.  of  his  money,  goods, 
chattels  and  property,  on  at  G,,  in  the  County  of  W.  aforesaid, 

unlawfully,  wickedly  and  deceitfully  did  conspire,  combine,  confede- 
rate and  agree  together  to  cheat  and  defraud  the  said  0.  D.  of  his 
money,  goods,  chattels  and  property  as  aforesaid,  under  a  false  and 

ing^s  before  described  ;  and  not  to  the  original  hatching-  of  the  plot  On  the  second  point  I 
concur  with  the  rest  of  tiie  court:  the  law  has  been  frequently  settled  as  stated." 

Duncan  J, :  "  It  is  objected,  that  the  fact  as  ciiarged  is  not  indictable ;  that  the  sentence 
is  erroneous.  The  objection  is,  that  the  indictment  states  that  the  notes  purported  to  have 
been  signed  and  to  have  borne  date  at  different  days,  in  the  past  tense,  and  though  they 
might  have  purported  to  be  so,  that  it  did  not  necessarily  follow  that  they  were  so,  when 
they  were  uttered  and  passed.  The  conspiracy  was  '  to  cheat  and  defraud,  by  certain  pa- 
pers purporting  to  have  been  signed  by  certain  persons,  and  at  certain  times ;  and  that  Col- 
lins, in  purs\iance  of  this  conspiracy,  did  utter  and  pay' these  papers,  purporting  to  have 
been  so  signed  and  so  to  bear  date;'  this  appears  to  nie  a  sufficient  and  satisfactory  setting 
forth  of  tiicse  papers.  It  was  not  necessary  to  set  them  fortli  verbatim,  it  was  only  neces- 
sary to  state  what  they  purported  to  be.  Tiie  allegation  is,  that  tliey  purported  to  be 
what  they  were  not.  That  is  the  substance  of  the  offl-ncc,  and  it  is  substantially 
charged.  It  is  again  objected,  that  tiic  act  done  by  Collins,  is  not  tlie  act  which  the 
defendants  arc  alleged  to  have  conspired  to  do.  Now  the  conspiracy  was  to  deceive  and 
defraud  divers  citizens  of  this  commonwealth,  by  means  of  these  papers,  and  the  charge  is, 
tliat  Collins  did,  in  pursuance  of  such  conspiracy,  &.C.,  utter  and  pay;  the  overt  act  laid, 
was  the  act  they  combined  to  do.  It  was  not  a  conspiracy  to  commit  one  act  of  fraud  on 
an  individual,  but  on  all  on  whom  they  could  practise  tliis  imposition.  It  is  further  oh. 
jected,  that  no  actual  fraud  is  alleged  to  have  been  per[)etratcd  ;  the  act  of  fraud  was  his 
uttering  and  paying  these  notes ;  they  were  uttered  and  paid  as  good  and  genuine  notes  of 
a  certain  bank,  the  defendant  well  knowing  there  was  no  such  bank," 


348  OFFEN'CES  AGAINST  SOCIETY. 

deceitful  colour  and  pretence  of  said  B.'s  securing  to  be  paid  unto 
tlie  said  0.  D.,  three  hundred  and  forty-one  dollars  and  thirty  cent.s, 
by  endorsing  and  transferring  to  the  said  0.  D,,  a  certain  promissory 
note  made  by  one  M.  G.,  by  which  note  the  said  M.  G.  promised  lo 
pay  B,,  or  order,  three  hundred  and  forty-one  dollars  and  thirty  cents 
on  demand;  and  the  jurors,  &c.,  do  further  present,  that  the  said  B., 
in  pursuance  of  and  according  to  the  said  conspiracy,  did,  on 
(at  in  the  county  of  aforesaid),  wickedly  and  fraudulently 

pretend  to  the  said  0.  D.,  tbat  the  said  M.  G.  was  solvent  and  ahio 
to  pay  the  said  note,  and  that  the  said  0.  D.  would  be  in  no  danger 
of  losing  the  sum  of  money  contained  in  said  note,  by  taking  the  as- 
signment thereof,  at  the  risk  of  the  said  0.  D.  collecting  the  contents 
from  the  said  M.  G,,  without  resorting  to  the  said  B,  as  endorser,  and 
that  the  said  W.,  in  further  pursuance  of  and  according  to  the  con- 
spiracy aforesaid,  afterwards,  to  wit,  on  at  aforesaid, 
falsely  and  deceitfully  represented  to  tiie  said  0.  D.,  that  he  the  said 
W.  was  the  said  M.  G.,  the  maker  of  the  said  note,  and  that  the  said 
W.  had  then  two  hundred  dollars  in  money  for  tlie  purpose  of  pay- 
ing in  part  the  contents  of  said  note,  and  that  in  case  the  said  0.  D. 
would  purchase  the  said  note  of  the  said  B^,  he  the  said  W.  would 
thereupon  immediately  pay  the  sum  of  two  hundred  dollars  to  the 
said  0.  D.,  in  part  payment  of  the  said  note,  and  would  pay  the  re- 
mainder in  a  short  time  thereafter.  And  the  jurors  aforesaid,  upon 
their  oath,  &c.,  do  further  present,  that  the  said  B.,  in  further  pur- 
suance of  and  according  to  the  said  conspiracy,  assigned  and  trans- 
ferred, by  force  of  the  said  false  pretences  hereinbefore  mentioned ; 
and  that  he  the  said  B.,  in  further  pursuance  of  and  according  to  said 
conspiracy,  by  means  of  said  false  pretences,  and  by  force  of  said 
assignment  and  transfer  of  said  note,  did  wickedly  and  fraudulently 
obtain  from  tiie  said  0.  D.,  one  horse  of  the  value  of  thirty  dollars,  a 
wagon  of  the  value  of  thirty  dollars,  &c.,  of  the  goods  and  chattels  of 
the  said  0.  D. ;  whereas  in  truth  and  fact,  the  said  M.  G.  was  then 
and  there  insolvent,  and  not  able  to  pay  the  money  contained  in  the 
said  note,  which  they  the  said  B.  and  W.  then  and  there  well  knew  ; 
and  whereas  in  truth  the  said  W.  was  not  the  maker  of  the  said  note, 
nor  liable  to  pay  the  same,  as  was  falsely  pretended  by  tlie  said  W,, 
to  the  said  0.  1).,  as  they  the  said  B.  antl  W.  then  and  there  well 
knew ;  to  the  great  injury  and  damage  of  the  said  0.  D.,  and  against, 
&c.     (Conchide  as  in  book  1,  chap.  3).(/) 

(/)  People  V.  Barrett  and  Ward,  1  Jolins.  R.  GG.  On  tliis  indictment,  in  consequence  of 
tlic  suddenly  discovered  ul)sciice  of  rnateriiil  (esliinony,  the  court,  on  application  of  llie  dis- 
trict attorney,  withdrew  a  juror  afjainst  the  defendants'  consent.  On  a  subsequent  day 
tliey  were  tried  and  co;^ivicted  on  the  same  indictment,  but  on  error  to  the  Su|)remc  Court 
the  judjrment  below  was  reversed,  and  tliey  were  di.sehar^ed.  Heing  afterwards  re-indicted 
in  a  new  bill,  they  answered  autrefins  acrpiit,  to  which  tlie  attorney-general  replied  nul  del 
record.  Ilowever  irregular  this  plea  was  under  llie  ciiftnustanees — the  i)ro|)er  course  now 
being  in  such  case  to  demur  to  the  pleu — the  validity  of  the  pn  sent  indictment  was 
brought  before  the  court.  'I'he  prosecution  rested  on  the  alleged  inadequacy  of  the  first 
indictment  to  sustain  a  verdict.  After  a  very  zealous  scrutiny,  however,  but  one  error 
was  proved;  but  as  tliat  was  enough  to  vitiate  the  indictment,  it  was  held  that  it  could  not 
be  pleaded  in  bar  to  further  |)roceedings  for  the  same  otl'encc.  "'i'he  defendant's  counsel," 
Baid  Sjiencer  J.,  "  has  obviated  all  the  exceptions  taken  to  the  indictment  but  one.  There 
apiKJars  to  be  no  venue,  either  exjircssly  or  by  imi)lication,  as  to  the  fraudulent  reprcsenta- 


COXSPIRACV.  349 

To  cheat  by  indirect  means,  (SfC,  with  overt  acts  charging  false  pre- 
tences, ^'C.{m) 

That  H.  G.,  C.  L.,  W.  W.,  R.  W.  and  F.  W.,  &c.,  being  wicked 
and  evil  disposed  persons  as  aforesaid,  and  devising  and  contriving, 
&c.,  on,  &c.,  with  force  and  arms,  at,  &.C.,  unlawfully,  falsely,  fraud- 
ulently and  deceitfully  did  conspire,  combine,  confederate  and  agree 
together  unlawfully  and  by  indirect  means  to  obtain,  acquire  and 
get  into  tlicir  hands  and  possession,  of  and  from  one  G.  P.  R.,  certain 
bills  of  exchange  accepted  by  the  said  G.  P.  R.,  amounting  together 
to  a  large  sum  of  money,  to  wit,  the  sum  of  seven  hundred  pounds, 
and  to  cheat  and  defraud  the  said  G.  P.  R.  of  the  proceeds  of  the 
said  last  mentioned  bills  of  exchange  so  accepted  as  aforesaid;  that 
in  pursuance  of  the  said  last  mentioned  conspiracy,  combination, 
confederacy  and  agreement  so  as  aforesaid  had  and  made,  the  said 
H.  G.,  C.  L.,  VV.  W.,  R.  W.  and  F.  W.,  well  knowing  that  the  said 
G.  P.  R.  was  desirous  of  borrowing  a  certain  sum  of  money  upon 
certain  security  possessed  by  the  said  G.  P.  R.,  to  wit,  on,  &c.,  at, 
&c.,  did  falsely  pretend>  assert  and  affirm  to  the  said  G,  P.  R.,  that 
one  W.  P.  of  Paris,  in  the  kingdom  of  France,  and  then  resident  at 
H.  hotel,  Piccadilly,  in  the  said  Connty  of  Middlesex,  a  friend  of  the 
said  H.  G.,  and  a  client  of  the  said  W.  W.,  R.  W.  and  F.  W.,  had 
agreed  to  lend  and  advance  to  the  said  G.  P.  R.  and  H.  G.,  the  sum 
of  fifty-five  thousand  pounds,  forty-two  thousand  five  hundred  pounds, 
part  thereof,  to  be  received  by  the  said  G.  P.  R.,  and  the  sum  of 
twelve  thousand  five  hundred  pounds,  the  remainder  thereof,  to  be 
received  by  the  said  H.  G. ;  and  that  the  said  sum  of  fifty-five  thous- 
and pounds  was  lying  waiting  for  them  the  said  G.  P.  R.  and  H.  G., 
at  Messrs.  H.'s,  the  bankers  of  the  said  W.  P. ;  and  that  if  tlie  said  G. 
P.  R.  would  accept  bills  of  exchange  to  the  amount  of  five  thousand 
pounds,  in  addition  to  a  certain  other  bill  of  exchange  before  then 
accepted  by  the  said  G.  P.  R.  for  the  sum  of  one  thousand  pounds, 
and  would  also  accept  a  certain  other  bill  of  exchange  for  two  thous- 
and ponnds,  they  the  said  W.  VV.,  R.  W.  and  F.  W,  should  and  would 
retain  for  the  said  G.  P.  R.,  the  sum  of  six  thousand  ponnds  out  of 
the  said  H,  G.'s  share  of  the  said  loan  or  siim  of  fifty-five  thousand 
pounds,  and  should  and  would  also  pay  and  discharge  certain  claims 
upon  the  said  G.  P.  R.,  amounting  to  the  further  sum  of  two  thous- 
and pounds,  out  of  the  said  G.  P.  R.'s  share  of  the  said  loan  or  sum 
of  fifty-five  thousand  pounds  ;  by  means  of  which  said  false  pretences 
in  this  count  mentioned,  and  in  further  pursuance  of  the  said  last 
mentioned  conspiracy,  combination,  confederacy  and  agreement  so 
had  and  made  as  aforesaid,  they  the  said  H.  G.,  C.  L.,  W,  W.,  R.  W. 

lions  made  by  B.  to  O.  D.  that  M.  G.,  the  maker  of  the  note,  was  in  solvent  circumstances. 
This  representation  is  the  very  pist  of  the  indictment ;  and  had  the  defendant  been  con- 
victed on  it,  I  sliould  hive  held  the  judgment  liable  to  be  arrested;  for  it  is  a  fundamental 
principle  in  criminal  law  that  every  material  fact  nmst  be  clearly  and  fully  set  out,  so  that 
nothing  can  be  taken  by  intendment."  This  blank  is  here  filled  up  by  the  averment  in 
brackets. 

{m)  This  indictment  was  sanctioned  by  the  Court  of  King's  Bench,  in  R.  v.  Gompertz, 
December  17,  1846,  II  Jurist  ".204,  (see  ante,  p.  335,  n.)    The  great  stress  was  on  the  eighth 
count,  which,  as  well  as  the  other  counts,  was  sustained  by  the  court. 
30 


330  OFFENCES  AGAINST  SOCIETY. 

and  F.  W.,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  did  oblain,  acquire  and 
get  into  tlu!ir  hands  and  possession,  of  and  from  the  said  G.  P.  R., 
certain  other  bills  of  exchange  acce))ted  by  him  the  said  G.  P.  R.,  and 
payable  at  a  future  day,  for  divers  other  large  sums  of  money 
amounting  in  tlie  whole  to  a  large  sum  of  money,  to  wit,  the  sum  of 
seven  thousand  pounds,  that  is  to  say,  four  bills  of  exchange  for  the* 
respective  sums  of  one  thousand  pounds  each,  two  bills  of  exchange 
for  the  respective  sums  of  five  hundred  pounds  each,  and  one  other 
bill  of  excliange  for  the  sum  of  two  thousand  pounds.  Whereas  in 
truth  and  in  fact,  the  said  W.  P.  of  Paris,  in  the  kingdom  of  France, 
and  then  resident  at  H.fhotel,  Piccadilly,  in  the  said  County  of  Mid- 
dlesex, a  friend  of  the  said  H.  G.,  and  a  client  of  the  said  W.  W.,  R. 
W.  and  F.  W.,  had  not  agreed  to  lend  and  advance  the  said  G.  P.  R. 
and  H.  G.,  the  sum  of  fitty-five  thousand  pounds,  the  sum  of  forty- 
two  thousand  five  hundred  pounds,  part  thereof,  to  be  received  by 
the  said  G.  P.  R.,  and  the  sum  of  twelve  thousand  five  hundred 
pounds,  the  remainder  thereof,  to  be, received  by  the  said  H,  G. 

And  whereas  in  truth  and  in  fact,  no  sum  of  fifty-five  thousand 
pounds  was  lying  waiting  lor  them  the  said  G.  P.  R.  and  H.  G.,  at 
Messrs.  H.'s,  the  bankers  of  the  said  W.  P. ;  and  whereas  in  truth 
and  in  fact,  if  the  said  G.  P.  R.  would  accept  bills  of  exchange  to  the 
amount  of  five  thousand  pounds,  in  addition  to  a  certain  other  bill  of 
exchange  before  then  accepted  by  the  sai(,l  G,  P.  R.,  for  the  sum  of 
one  thousand  pounds,  and  would  also  accept  a  certain  other  bill  of  ex- 
change for  two  thousand  pounds,  they  the  said  W,  W.,  R.  W.  and  F. 
W.  would  not  retain  for  the  said  G.  P.  R.,  the  sum  of  six  thousand 
pounds  out  of  the  said  H.  G.'s  share  of  the  said  loan  or  sum  of  fifty- 
five  thousand  pounds,  and  would  not  also  pay  and  discharge  certain 
claims  upon  tht^  said  G.  P.  R.,  amounting  to  the  sum  of  two  thousand 
pounds  out  of  the  said  G.  P.  R.'s  share  of  the  said  loan  or  sum  of 
fifty-five  thousand  pounds;  and  whereas  in  truth  and  in  fact,  there 
was  no  such  person  as  W.  P.  of  Paris,  in  the  kingdom  of  France, 
and  then  resident  at  H.  hotel,  Piccadilly,  in  the  said  County  of  Mid- 
dlesex, a  friend  of  the  said  H.  G.,  and  a  client  of  the  said  W.  W.,  R. 
W.  and  F.  W. ;  and  wherfeas  in  truth  and  in  fact,  the  said  H.  G.,  C. 
L.,  W.  W,,  R.  W.  and  F.  W.,  well  knew  that  no  advance  of  money 
was  intended  to  be  made  to  tlie  said  G.  P.  R.  by  W.  P.,  or  any  other 
person  whatsoever;  and,  on  the  contrary  thereof,  the  said  H.  G.,  C. 
L.,  W,  W.,  R.  W.  and  F.  W.,  during  all  the  time  last  aforesaid,  in- 
tended only  to  obtain  and  accjuire  to  themselves  the  said  several  last 
mentioned  bills  ol"  exchange  so  accej)ted  as  aforesaid,  and  to  convert 
the  same  to  their  own  use,  and  utterly  to  cheat  and  defraud  the  said 
G.  P.  R.  of  the  same,  and  of  the  proceeds  thereof  respectively,  to  wit, 
at,  &.C.,  to  the  great  fraud,  damage  and  deception  of  the  said  G.  P. 
R.,  &c. 

TliR  fourth  count  cho7:^ctl  l/ial.  the  (Icfctidonts  consipired  to  enable  ihe 
said  II.  (J.  to  gel  into  his  hands  certain  bills  of  exchange  accepted  by 
the  said  G.  P.  R.,  and  cheat  and  defraud  him  of  the  proceeds  thereof, 
and  proceeded  to  state  certain  occ.rt  acts. 

y  he  fifth  count  charged  that  the  defendants  conspired  to  cheat  and 
defraud  the  said  G.  P.  R.  of  divers  large  sums  of  money,  of  the  proper 
moneys  oj  the  said  G.  P.  R. ;  and  proceeded  to  atate  overt  acts. 


covspiRACV.  351 

The  sixth  count  chnrrrpjl  that  the  defendnils  covspirerj,  ht/  (Jivrrs  false 
pretences,  to  cheat  and  defraud  the  said  G.  P.  R.  of  divers  large  sums 
of  ?}ionet/,  of  the  proper  moneys  of  the  said  G.  P.  R. 

7 he  seventh  count  charged  that  the  defendants  conspired,  hij  false 
pretences,  to  get  into  their  hands  divers  other  bills  of  exchange  accepted 
by  the  said  G.  P.  R.,  and  payable  at  a  future  day;  not  stating  overt 
acts. 

The  eighth  count  stated  that  the  said  H.  G.,  C.  L.,  W.  W.,  R.  W. 
and  F,  W.,  heiiig  such  evil  disposed  persons  as  aforesaid,  and  devisin|2[ 
and  contriving  as  aforesaid,  afterwards,  to  wit,  on,  &,c.,  in  the  year 
aforesaid,  with  force  and  arms,  at  G.'s  inn  aforesaid,  in  the  County  of 
Middlesex  aforesaid,  unlawfully,  falsely,  fraudulently  and  deceitfully 
did  conspire,  combine,  confederate  and  agree  together,  by  divers  false 
pretences  and  indirect  means,  to  cheat  and  defraud  the  said  G.  P.  R. 
of  his  moneys,  to  the  great  damage,  fraud  and  deceit  of  the  said  G. 
P.  R.,  to  the  evil  example,  &:c. 

Conspiracy  to  cheat  by  false  pretences.  First  count.  Conspiracy  "by 
divers  false  pretences  and  subtle  ineans  and  contrivances''''  to  obtain 
goods,  <^'C.,  from  prosecutors.  Overt  acts  charging  a  fraudulent  car- 
rying on  business  by  a  fictitious  name,  7'eceiving  goods  on  that  basis, 
and  fraudulently  concealing  the  same.{n) 

That  the  several  defendants  "  intending  to  defraud  divers  of  the  liege 
subjects  of  our  lord  the  king  of  their  goods  and  merchandise,  on,  &c., 

(n)  This  is  the  first  count  of  the  indictment  in  R.  v.  Hamilton,  7  C.  &  P.  448. 

The  second  count  charged  tliat  all  tlie  defendants,  "intending'  to  cheat  and  defraud 
divers  of  the  liege  subjects  of  our  lord  the  king  of  their  goods  and  merchandise,"  did  con- 
spire, "by  divers  false  pretences  and  subtle  means  and  contrivances,  to  obtain  and  acquire 
to  themselves,  of  and  from  divers  liege  subjects  of  our  lord  the  king,  then  carrying  on  bu- 
siness at  or  near  Belfast  aforesaid,  to  wit,  J.  B.  and  VV.  B.  {na7nincr  the  eight  prosecutors), 
divers  other  goods  and  mercliandise  of  great  value,  to  wit,  of  the  value  of  £10,000,  and 
to  cheat  and  defraud  the  said  subjects  of  their  said  goods  and  merchandise,  to  the  great 
damage  of  the  said  J.  B.  and  W.  B ,"  &,c. 

The  third  count  was  exactly  similar  to  the  second,  except  that  it  throughout  omitted  the 
names  of  the  parties  intended  to  be  det'raudcd. 

The  fourth  count  was  exactly  similar  to  the  third,  except  that  in  it  the  names  of  John 
Bell  and  William  Bell  were  inserted  throughout  this  count,  instead  of  the  words  "divers 
liege  subjects  of  our  said  lord  the  king,  then  carrying  on  business  at  or  near  Belfast  afore- 
said." 

The  fifth  and  sixth  counts  were  similar  to  the  fourth,  except  that  in  these  counts  the 
names  of  Mr.  Stewart  and  Afossrs.  Bragg  were  substituted  for  those  of  Messrs.  Bell. 

The  seventh  count  charged  that  all  the  defendants,  "  intending  to  cheat  and  defraud 
certain  persons,  then  cjrrving  on  business  at  Belfast  aforesaid,  of  their  goods  and  mer- 
chandise," did  conspire  "  that  the  said  S.  J.,  otherwise  called  G.  F.  H.,  should  fraudulently 
get  into  his  hands,  under  colour  and  pretence  of  purchasing  the  same,  divers  goods  and 
merchandises,  of  and  belonging  to  certain  merchants,  then  carrying  on  business  at  Bel- 
fast, and  that  (all  the  defendants)  should  cheat  and  defraud  the  said  merchants  so  carry- 
ing on  business  at  Belfast,  of  the  said  goods  and  merchandise,  to  the  great  damage  of  the 
said  merchants,"  &c. 

The  eighth  count  charged  that  the  defendants,  intending  to  defraud  Messrs.  Bell,  did 
conspire  that  S.  J.,  otherwise  called  (I.  F.  H.,  should  "fraudulently  get  into  his  hands, 
under  colour  and  pretence  of  purchasing  the  same,"  <roods  of  .Messrs.  Bell,  and  that  all  the 
defendants  "should  cheat  and  defraud"  Messrs.  Bell  of  the  same. 

The  ninth,  tenth  and  eleventh  counts  were  similar,  substituting  the  names  of  Mr.  Stew- 
art,  Messrs.  Bragg  and  Mr.  MaUinson  for  those  of  Messrs.  Bell. 

The  twelfth  count  charged  that  all  the  dctendants,  "intendinsT  to  cheat  and  defraud 
divers  of  the  liege  subjects  of  our  lord  the  king  of  their  goods  and  merchandises,"  did  con- 


352  OFFENCES  AGAINST  SOCIETY. 

at,  &;c.,  and  within  the  jurisdiction  of  the  said  court,  unlawfully,  &c., 
did  conspire,  witli  divers  other  persons  unknown,  by  divers  false  pre- 

Spiic  "by  divers  false  pretences  and  subtle  means  and  devices,  tbat  tiie  said  S.  J.,  otbcr- 
wise  called  G.  F.  H.,  should  fraudulently  get  into  his  hands  divers  goods  and  mercandise 
of  and  belonging-  to  the  said  liege  sulijeels,  and  that  (ail  the  defendants)  should  cheat  and 
defraud  tlie  said  liege  subjects  of  their  said  goods  and  merchandises,  to  the  great  damage 
of  the  said  liege  subjects,"  &,c. 

Tlie  thirteenth  count  charged  that  all  the  defendants,  "intending  to  cheat  and  defraud 
divers  liege  subjects  of  our  lord  tlie  king  of  their  goods  and  merchandises,"  did  conspire 
"  by  false  pretences  and  subtle  means  and  devices  to  get  into  their  hands  divers  goods  and 
merchandise,  of  and  belonging  to  the  said  liege  subjects,  of  great  value,  and  to  cheat  and 
defraud  the  said  liege  subjects  of  the  same,  to  the  great  damage  of  the  said  liege  sub- 
jects," Sec. 

In  this  ease  a  summons  having  been  obtained,  calling  on  the  prosecutors  to  show  cause 
why  they  should  not  deliver  a  |)artieular  of  the  charge: 

r3odkin,  for  the  defendants  contended,  that,  from  the  general  nature  of  the  indictment, 
the  defendants  could  not  make  their  defence  without  a  particular  of  the  charges. 

C.  Phillips,  for  the  prosecution,  submitted  that,  in  a  ease  of  conspiracy,  the  defendants 
were  not  entitled  to  a  particular  of  the  charge. 

Littledale  J.,  took  time  to  consider,  and  then  made  the  following  order: 
"The  King  v.  M.  Woolf  and  others. 

"Upon  hearing  Mr.  Bodkin,  of  counsel  for  the  defendants,  and  Mr.  C.  Phillips,  of  coun- 
sel for  the  prosecutors,  and  upon  hearing  the  attornej's  or  agents  on  both  sides,  I  do  order 
that  the  prosecutors  deliver  to  the  defendant,  M.  Woolf,  or  liis  attorney,  a  ])arlicular  state- 
ment and  specific  charge,  in  writing,  to  he  made  against  the  said  M.  Woolf  under  this  in- 
dictment, in  order  that  he  may  be  enabled  fairly  to  defend  himself  against  such  charge; 
and  that  in  the  meantime  all  further  proceedings  be  staid. 
"  Dated  this  5lh  day  of  February,  1836. 

"  J.  Littledale," 

Under  this  order  the  following  particular  was  delivered: 

"  In  the  Central  Criminal  Court. — The  King  against  Mozely  Woolf  and  others. 

"  In  obedience  to  an  order  obtained  by  you,  we  give  you  notice,  that  the  statement  or 
charge  which  is  made  against  you  is  of  conspiracy  with  Joseph  Charles  Lyons,  Simeon 
Josejjh,  otherwise  George  Frederick  Hamilton,  Izidore  Levinson,  otherwise  James  Roller, 
Heyman  Levin,  Morris  Levinson  and  Abraham  Hartsane,  or  one  of  them,  to  defraud  the 
several  other  persons  mentioned  in  this  indictment  and  others,  by  obtaining  from  them, 
through  the  said  Simeon  Joseph,  otherwise  George  Frederick  Hamilton,  large  (juantilies 
of  goods,  under  the  false  j)retence  that  the  said  Simeon  Joseph,  otherwise  called  CJcorge 
Frederick  liamilton,  was  a  partner  in  the  firm  of  Mulif^ius  Schneider  and  (^mjiany,  of 
Hamburg,  and  under  the  false  and  fraudulent  pretences  and  means  charged  in  the  indict- 
ment, that  you  the  said  Mozely  Woolf,  were  a  party  or  jirivy  to  the  said  conspiracy,  and 
acted  in  furtherance  thereof;  and  that  you  received  the  said  goods  so  fraudulently  ohtaincd 
or  [)art  thereof,  with  a  guilty  knowledge,  oY  with  reasonable  gruund  to  sus[)ect,  that  they 
Jiad  been  fraudulently  obtained,  and  that  you  did  not  come  by  honest  and  fair  means,  and 
in  the  usual  c(jurse  of  faic  and  honest  trade  and  dealing,  into  the  possession  of  the  said 
goods;  ai]d  take  hoticc,  that  the  prosecutors  will  contend  that  they  are  not  hound  or  limit- 
ed b}'  this  notice  to  giving  in  evidence  any  matter  which,  if  this  notice  had  not  been 
delivered,  they  would  have  been  entitled  to  give  in  evidence  on  the  trial  of  this  indictment. 
Dated  this  Utli  day  of  February,  lb36. 

"  Yours,  &LC.  AsiiunsT  &  Gainsford. 

"Solicitors  for  the  prosecution. 

"To  Mozely  Woolf,  one  of  the  above  named  defendants,  and  to  Mr.  Isaacs,  his  attorney 
or  agent,  or  whom  else  it  may  concern." 

A  summons  was  afterwards  taken  out  before  Mr,  Justice  Littledale,  for  a  further  and 
better  particular  of  the  charge. 

"Adolj)hus,  Jbr  the  ])roseeution. — I  submit  that  there  Ought  to  be  no  [)articular  in  a  case 
of  conspiracy.  I  am  aware  that  in  eases  of  barratry  and  of  emliezzlement  (U.  «.  Hodgson, 
B  (;.  &,  P.  4ii2  ;  R,  v.  Rootyman,  .3  C.  &,  P.  .")()()),  patticulars  have  been  granted ;  and  in  a 
recent  case  of  nuisance  a  particular  was  ordered  (R.  v.  C-urwood,  5  N.  &  M.  3().'();  but  in 
a  case  of  consjiiracy,  I  believe  there  is  no  instance  of  a  j)articular  of  the  charge  having 
been  ordered. 

"Littledale  J. — Before  I  made  the  order  for  a  [jarticulai  in  this  case,  I  conferred  with 
several  of  tlie  learned  judges,  and  they  agreed  with  me  as  to  the  making  of  the  order.  It 
is  llicrcforc  not  my  opinion  alone  ;  1  think  you  ought  in  your  particular  to  stale  either 


coN'SPir.Acy. 


3.J3 


tences  and  subtle  means  and  contrivances,  to  obtain  and  acquire  to 
themselves  of  and  from  divers  liege  subjects  of  our  lord  the  king,  thou 
carrying  on  business  at  or  near  Belfast,  in  that  part  of  the  united 
kingdom  called  Ireland,  to  wit,  of  J.  B.  and  W.  B.,and  of  W.  S.,  and  of 
H.  B.  and  H.  B.  the  younger,  and  of  G.  H.,  and  of  T.  H.,  and  of  C.  A., 
divers  goods  and  merchandises  of  great  value,  to  wit,  of  the  value  of 
ten  thousand  pounds,  and  to  cheat  and  defraud  the  said  subjecfs 
thereof."  And  the  jurors,  Sic,  do  furtlier  present,  that  the  defendant 
S.  J,,  otherwise  called  G.  F.  H.,  in  pursuance  of  the  said  conspiracy, 
did  afterwards  at  Belfast  "  falsely  and  fraudulently  carry  on  business, 
imder  the  style  and  firm  of  M.  S.  and  Company,  and  did  fraudulently 
obtain  divers  goods  and  merchandises  of  great  vaUie,  to  wit,  of  tlie 
value  often  thousand  pounds,  of  and  belonging  to  the  said  liege  sub- 
jects of  our  said  lord  the  king,  then  carrying  on  business  at  Belfast  as 
aforesaid,  under  colour  and  pretence  of  purchasing  the  same  for  the 
said  firm  of  M.  S.  and  Company,  to  wit,  goods  and  merchandise  of 
the  said  J.  B.  and  W.  B.,  of  the  value  of  one  thousand  pounds,"  and 
[stating  goods  of  the  value  of  Jive  hundred  pounds  of  each  of  the 
other  prosecutors).  And  the  jurors,  &c.,  do  further  present,  that  the 
six  other  defendants,  in  further  pursuance  of  this  conspiracy,  "did 
afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at  London  afore- 
said, and  within  the  jurisdiction  of  the  said  court,  fraudulently  receive 
the  said  goods  so  obtained  by  the  said  S.  J.,  otherwise  called  G.  F.  H. 
as  aforesaid,  imder  colour  and  pretenCe  of  having  purchased  the  same, 
and  did  fraudulently  conceal  and  secrete  the  same."     And  so  the  jurors 

that  the  goods  were  obtained  by  those  pretences  stated  in  the  first  count,  or  that  you  should 
specify  what  the  pretences  were. 

"C'arrington,  for  the  defendant  Woolf. — Nothin;^  can  be  more  general  than  the  particular 
already  delivered.  It  does  not  liinit  the  charge  in  any  way  either  to  time,  place,  persons 
or  facts.  I  submit,  that  Mr.  Woolf  should  be  informed  what  specific  acts  he  is  chargfcd 
with  havino-  done,  and  also  the  times  ,aiid  places  at  which  those  acts  are  alleged  to  have 
taken  phice. 

"  Littledale  J. — I  do  not  think  that  in  a  case  of  conspiracy,  I  ought  to  compel  the  prose- 
cutors to  state  all  that. 

"Carrin^ton. — The  prosecutors  add  a  notice  at  the  end  of  their  particulars,  vague  as  they 
are,  that  they  do  not  intend  to  be  bound  by  them,  but  that  they  meant  to  go  into  other 
evidence. 

"  Littledale  J. — The  prosecutors  should  not  add  that  to  their  particulars.  If,  after  giving 
particulars  the  prosecutors  give  a  distinct  and  separate  notice,  that  they  mean  to  go  into 
other  evidence,  and  the  defendants  at  the  trial  object  to  that,  and  rely  upon  the  particulars, 
the  judge  at  the  trial  will  decide  whether  he  will  receive  any  evidiiice  beyond  the  parti- 
culars. I  think  that  the  ordering  of  particulars  in  cases  like  the  present,  is  a  highly  bene- 
ficial practice,  and  I  also  think,  that  a  jjarticular  should  give  the  same  information  that  a 
special  count  does.  The  first  count  in  this  indictment  in  my  opinion,  states  enougii  with- 
out any  pariicular;  the  effect  of  a  particular  being,  when  a  count  is  framed  in  a  general 
form,  to  give  tlie  op|)osite  party  the  same  information  that  he  would  give  if  there  was  a 
special  count.  I  have  always  understood  this  to  be  the  rule  with  respect  to  particulars  in 
civil  cases." 

His  lordship  made  the  following  order  : 

"The  King  v.  M.  Woolf,  indicted  with  others. 

"Upon  hearing  Mr.  Carrington,  of  counsel  for  the  defendant,  and  ]\Ir.  Adolphus,  of 
counsel  for  the  prosecution,  and  by  consent,  I  do  order,  that  the  attorneys  or  agents  for 
the  prosecution,  deliver  to  Mr.  Isaacs,  the  defendant,  "SI.  Wonlf's  attorney,  a  further  and 
better  particular  of  the  nature  and  charge  alleged  in  the  indictment  in  this  prosecution. 
And  that  in  the  meantime  all  fiirtiicr  proceedings  be  staid. 
"  Dated  the  Ibtli  day  of  February,  1836. 

"J.  Littledale." 
30* 


354  OFFENCES  AGAINST  SOCIETY. 

aforesaid,  upon  their  oaths  aforesaid,  do  say,  that  (all  the  defendants), 
in  manner  and  bv  the  means  aforesaid,  nnlawfnlly  and  frandnlently 
did  obtain  from  t'he  said  J.  B.  and  W.  B.,  W.  S.,  H.  B.  and  H.  B.  the 
younger,  G.  H.,  T.  H.  and  C.  M.,  respectively,  the  goods  and  mer- 
chandise aforesaid,  and  did  cheat  and  defraud  them  thereof,  "to  the 
great  damage  of  the  said  J.  B.  and  W.  B.,  &c.,  and  against  the 
peace,"  &c.     (Conclude  as  in  book  1,  chap.  3). 

Conspirocy  to  obtain  from  prosecutor  certain  articles  under  the  pretence 
tliat  defendants  icere  the  servants  of  a  third  parti/.  Overt  acts  charg- 
ing the  consumjnation  of  ifie  conspiracy. 

That  J.  M'G.  and  P.  M'G,  late  of,  &c,,  yeomen,  being  evil  and  ill- 
disposed  persons  and.  contriving  and  intending  unlawfully,  fraudu- 
lently and  deceitfuly  to  cheat  and  defraud  one  C.  G.  P.,  of  the  city 
aforesaid,  yeoman,  on,  &c.,  witli  force  and  arms,  &c.,  at,  &c.,  falsely, 
fraudulently  and  unlawfully  did  combine,  conspire,  confederate  and 
agree  together  to  obtain,  acquire  and  get  into  their  possession  of  and 
from  the  said  C.  G.  P.,  tliree  pots  of  kitchen  fat  of  the  value  of 
seven  shillings  and  sixpence  and  five  bushels  of  wood  ashes  of  the 
value  of  three  shillings  and  ninepence,  tinder  the  false  colour  and  pre- 
tence that  the  said  J.  and  P.  were  the  servants  of  K.  and  M.  of  the 
city  aforesaid,  tallow  chandlers  and  soap  boilers,  and  employed  and 
authorized  by  them  the  said  K.  and  M.  to  collect  kitchen  fat  and  wood 
ashes  for  tliem  the  said  K.  and  M.  And  the  said  J.  and  P.  in  pursu- 
ance of  and  according  to  the  conspiracy,  combination  and  agreement 
aforesaid,  so  as  aforesaid  between  them  had,  afterwards,  to  wit,  on 
the  same  day  and  year  aforesaid,  at  the  city  aforesaid,  and  within  the 
jurisdiction  of  this  court,  falsely,  fraudulently,  unlawfully  and  deceit- 
i'ully  did  pretend  and  affirm  that  they,  then  and  there  were  the  ser- 
vants of  K.  and  M.,  tallow  chandlers  and  soap  boilers,  and  that  they 
were  employed  and  authorized  by  them  to  collect  kitchen  fat  and 
wood  ashes.  And  the  said  J.  and  P.  in  pursuance  of  and  according 
to  the  conspiracy,  combination  and  agreement  aforesaid,  afterwards, 
to  wit,  on  the  same  day  and  year  aforesaid,  at  the  city  aforesaid  and 
within  the  jurisdiction  of  this  court,  by  the  false  pretences  aforesaid, 
did  obtain,  accjuire  and  get  into  their  possession  unlawfully  and  fraud- 
ulently, three  pots  of  kitchen  fat  of  the  value  of  seven  shillings  and 
sixpence  and  five  bushels  of  wood  ashes  of  the  value  of  three  shillings 
and  ninepence,  of  the  goods  and  chattels  of  the  said  C.  G.  P.,  from  the 
said  C.  G.  P.,  whereas  in  truth  and  in  fact,  they  the  said  J.  and  P.  were 
not  then  the  servants  of  the  said  K.  and  M.,  nor  was  either  of  them  the 
servant  of  the  said  K.  and  M.,  and  whereas  they  the  said  J.  and  P. 
were  not  then  authorized  and  employed,  nor  was  cither  of  them  au- 
tliorized  and  employed  by  tin;  said  K.  and  M.  to  collect  kitchen  fat 
and  wood  ashes,  to  the  great  damage  of  the  said  C.  (i.  P.,  to  the  evil 
example,  &.C.,  contrary,  &.C.,  and  against,  &c.  [Conclude  as  in  book 
1,  chap.  3). 

» 


CONSPIRACY.  355 

Conspirivg  to  get  prosecutor'' s  goads  hij  false  prete7ices,  ^^0.(0) 

That  A.  W.  and  C.  J.,  both  now  resident  in  Ipswich  in  the  County 
of  Essex  aforesaid,  labourers,  being  evil  disposed  persons  and  devising 
and  contriving  to  cheat  and  defraud  one  M.  P.  of  his  property,  on, 
&c.,  now  last  past,  at,  &.C.,  with  force  and  arms  did  unlawfully  con- 
spire, combine,  confederate  and  agree  together  to  obtain,  acquire  and 
get  into  their  hands  and  possession  of  and  from  the  said  M.P.  a  large 
quantity  of  women's  shoes;  and  that  they  the  said  W.  and  J.  in  pur- 
suance of  the  unlawful  conspiracy,  combination,  confederacy  and 
agreement  aforesaid,  so  as  aforesaid  had,  did  then  and  there  falsely, 
fraudulently,  unlawfully  and  deceitfully  pretend  to  and  affirm  to  the 
said  P.  that  his  the  said  M.  W.'s  name  was  W.  L.,  that  he  the  said 
W.  then  lived  in  the  town  of  Gloucester,  in  the  county  aforesaid,  that 
he  carried  on  the  busiiiess  of  shoemaking  in  the  said  town  of  Glouces- 
ter, that  he  wanted  a  large  number  of  shoes  to  ship  to  the  Havana  in 
the  West  Indies ;  that  he  then  had  a  large  number  of  shoes  making 
for  his  use  to  be  shipped  to  the  said  Havana  by  him,  but  that  they 
could  not  be  finished  and  delivered  to  him  so  soon  as  he  should  have 
occasion  for  them,  and  that  he  the  said  M.  P.  giving  credit  to  and  be- 
lieving the  aforesaid  false,  deceitful  and  fraudulent  pretences  and 
affirmations  of  the  said  W.  and  J.,  and  notknowing  the  contrary,  was 
induced  to  and  then  and  there  did  deliver  to  the  said  W.  and  J.  two 
liundred  pairs  of  women's  shoes  of  the  value  of  one  hundred  and 
twenty-four  dollars,  upon  trust  and  credit;  and  that  the  said  M.  W. 
in  pursuance  of  and  according  to  the  unlawful  conspiracy, combination, 
confederacy  and  agreement  aforesaid,  did  then  and  there  falsely,  de- 
ceitfully and  fraudulently  make  counterfeit  and  fabrica-te  two  promis- 
sory notes  of  hand  for  the  sum  of  sixty-two  dollars  each,  bearing  date 
the  day  aforesaid,  one  of  which  notes  was  made  paj^able  to  the  said  IM. 
P.  or  his  order  in  thirty  days  from  the  said  date,  the  other  of  which 
was  made  payable  as  aforesaid  in  sixty  days  from  the  said  date  ;  and 
that  the  said  A.  VV,,  then  and  there,  in  pursuance  of  and  according  to 
the  conspiracy,  combination,  confederacy  and  agreement  aforesaid,  did 


(0)  This  count  was  sustained  in  Com.  r.  Warren,  6  Mass.  74,  and  on  this  account  I 
have  introduced  it  into  the  text,  Ihoujrii  I  doubt  whether  it  can  be  held  an  autiiority  any 
wlicre  exce|)t  in  the  state  wliere  it  was  ruled,  and  even  there  its  weight  is  very  much  affect- 
ed by  Com.  v.  Hiuit,  4  Mete.  111.  In  the  case  of  Warren,  Parsons  J.,  in  disposing  of  the 
indictment,  said  :  "TIk;  {jist  of  the  offence  is  the, conspiracy  to  cheat  Putnam  of  Ins  shoes, 
and  the  defendants  might  lawfully  have  been  convicted,  if  the  jury  were  satisfied  on  legal 
evidence  that  they  were  guilty  of  the  conspiracy  charged,  althongli  no  act  done  in  pursu- 
ance of  it  had  been  proved  ;  (^om.  v.  Judd  et  al.,  i  Mass.  R.  32i). 

"  But  Warren's  intent  to  defraud  Putnam  is  not  (^enied,  and  the  question  is,  whether 
t!ie  jury  could  lawfully  infer  that  Johnson  was  an  associate  and  confcdcr.ite  in  the  same 
fraudulent  design.  He  went  with  Warren,  he  was  with  him  in  the  shoj)  when  he  received 
the  shoes,  and  when  he  gave  the  tictitious  securities.  If  Johnson  gave  no  evidence  to  ex- 
plain his  connexion  with  Warren,  whence  the  jury  might  infer  that  it  was  innocent,  they 
might  infer  that  he  was  privy  to  Warren's  want  of  credit,  and  th;it  he  had  obtained  the 
shoes  fraudulently.  If  the  evidence  had  rested  here,  the  jury  might  have  pressed  it  too 
far;  but  when  it  was  proved  that  he  received  a  hundred  pair  of  the  shoes,  and  sold  thi  lu 
under  a  fictitious  name,  the  jury  might  well  infer  that  as  he  had  his  share  in  the  plnndcr, 
lie  was  an  associate  in  the  villiiny  by  which  it  was  obtained.  We  cannot,  ther(>fore,  say 
that  the  verdict  as  to  Johnson  is  against  evidence,  b\it  the  [iresum|)tii)n  against  liim  is  so 
strong,  that  the  jury  were  well  warranted  to  inter  ius  j^uilt  in  the  conspiracy  charged." 


350  OFFENCKS  A(iAIXSr  SOCIKTY. 

falsely,  deceitfully  and  frnuduleiitly  and  with  a  design  to  deceive, 
cheat  and  defraud  the  said  P., counterfeit,  sign  and  place  the  said  name 
of  W,  L.  to  each  of  the  said  notes  of  liand  as  and  for  the  true  and 
real  name  of  him  the  said  A.  W.,  and  deliver  the  said  notes  to  said  P. 
as  security  for  the  payment  of  the  said  shoes,  as  and  for  the  notes  of 
liim  the  said  A.  W. ;  whereas  in  truth  and  in  fact,  the  name  of  said 
A.  W.  was  not  W.  L.,  and  whereas  in  truth  and  in  fact,  the  said  A. 
did  not  then  live  or  dwell  in  the  said  town  of  Gloucester,  nor  did  he 
then  or  at  any  other  time  carry"  on  the  business  of  shoemakingin  said 
town  of  Gloucester,  nor  did  the  said  A.  W.  intend  to  ship  the  said 
shoes  to  the  said  port  of  Havana,  nor  had  he  then  any  quantity  of 
shoes  making  or  expected  to  be  made  for  him  to  be  sliipped  to  the 
said  Havana,  or  for  any  other  purpose  whatever;  but  the  said  W. 
was  then  and  there  a  person  of  no  business,  property,  credit  or  cha- 
racter whatever,  and  was  an  idle,  dissolute  and  fraudulent  person.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid  do  say,  that  the  said 
A.  W.  and  C.  J.,  according  to  and  in  pursuance  of  the  unlawful  con- 
spiracy, combination,  confederacy  and  agreement  aforesaid,  him  the 
said  M.  P.  of  the  aforesaid  two  hundred  pairs  of  shoes  in  manner 
aforesaid,  did  unlawfully  cheat,  d(!ceive  and  defraud,  to  the  great  dam- 
age of  him  the  said  M.  P.,  and  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 

Jl<rainsf.  the  officers  of  a  hanh,for  a  co7ispiracy  to  ohtain  hy  fraudulent 
means,  discounts  on  state  stock  to  a  large  <^mount.{p) 

That  by  an  act  of  congress  of  the  United  States,  passed  on  the 
tenth  day  of  April,  in  the  year  of  our  Lord  Sic,  at  the  City  of  Wash- 
ington, entitled  "an  act  to  incorporate  the  subscribers  to  the  Jiank  of 
the  United  States,"  a. bank  was  established  and  chartered  as  a  cor- 
poration and  body  politic,  by  the  name  and  style  of  the  "President, 
Directors  and  Company  of  the  Bank  of  the  United  States,"  with 
authority,  power  and  capacity  among  other  things  to  have,  purchase, 
receive,  possess,  enjoy  and  retain  to  them  and  their  successors,  lands, 
rents,  tcniements,  hereditaments,  goods,  chatties  and  effects,  of  what- 
soever kind,  nature  and  quality,  to  ^n  amount  not  exceeding  in  the 
whole  fifty-five  millions  of  dollars;  to  deal  and  trade  in  bills  of  ex- 
cliange,  gold  and  silver  bullion;  and  to  take  at  the  rate  of  six  percent, 
per  annum  for,  upon  its  loans  or  discounts,  and  to  issue  bills  or  notes 
signed  by  the  president  and  countersigned  by  the  principal  cashier  or 
treasurer  thereof,  promising  the  payment  of  money  to  any  person  or 
persons,  his,  her  or  their  order,'or  to  bearer. 

And  that  under,  and  by  virtue  of  the  power  and  authority  given  to 
the  said  directors  by  said  act  of  congress,  an  office  of  discount  and 
deposit  of  the  said  corporation  was,  at  the  time  hereinafter  mention- 
ed, regularly  and  duly  established  in  pursuance  of  the  power  contain- 

(p)  This  and  llic  followinc;  form  were  susljiinrd  liy  tlie  (^nurt,  of  Appciils  of  Maryland, 
in  tlie  c(  leliratcd  ease  of  State  v.  IJiiclianan  ;  .'i  Har.  &  J.  317.  'I'luy  bear  the  name  of 
Luther  Martin,  the  atlorney-irerieral,  &c.,  and  lor  accnraey  and  appnipriateness  of  e.xprcs- 
pjon,  ar(!  almost  iiniivalled.  Tlic  ()[)ini()n  of  the  conrt  h:is  liecn  alread}'  notiecd  {ante,  [U 
3J7),  but  a  careful  examination  of  it  ia  iccointncndtd  to  the  .ludent. 


CONSPIRACY. 


357 


ed  in  said  act  at  the  City  of  Baltimore,  in  the  State  of  Maryland, 
aforesaid.  (And  that  G.  VV.  late  of  the  Ciiy  of  Baltimore,  merchant, 
was  at  the  time  hereinafter  mentioned  and  before  and  afterwards,  one 
of  the  directors  of  the  said  Bankof  tlie  United  States  at  Philadelphia, 
to  wit,  at  tlie  City  of  Baltimore  aforesaid).  And  that  J.  A.  B..  late  of 
the  City  of  Baltimore,  merchant,  was  at  the  time  hereinafter  men- 
tioned, and  before  and  since,  president  of  the  said  office  of  discount 
and  deposit  of  the  said  Bank  of  the  United  States,  in  the  City  of  Bal- 
timore. And  that  J.  W.  JM'C,  late  of  the  City  of  Baltimore,  gentle- 
man, was  at  the  time  hereitiafter  mentioned,  and  before  and  after- 
wards, cashier  of  the  said  office  of  disconnt  and  deposit  of  the  said 
Bank  of  the  United  States  in  the  City  of  Baltimore,  to  wit,  at  the  City 
of  Baltimore  aforesaid,  (And  that  the  said  G.  W.,  so  being  one  of 
the  directors  of  the  said  Bank  of  the  United  States),^and  that  the  said 
J.  A.  B.,  so  being  president  of  the  said  office  of  discount  and  deposit 
of  the  said  bank  in  the  City  of  Baltimore,  and  the  said  J.  W.  iM'C, 
so  being  cashier  of  the  said  oliice  of  discount  and  deposit  of  the  said 
bank  m  the  City  of  Baltimore,  being  evil  disposed  and  dishonest,  per- 
sons, and  wickedly  devising,  contriving  and  intending,  ftilsely,  un- 
lawfully, fraudulently,  craftily  and  unjustly,  and  by  indirect  means 
to  cheat  and  impoverish  the  said  President,  Directors  and  Co.npany  of 
the  Bank  of  the  United  States  (and  to  defraud  them  of  their  moneys, 
funds  and  promissory  notes  for  the  payment  of  money,  commonly 
called  bank  notes,  and  of  their  honest  and  fair  gains  to  be  derived 
under  and  pursuant  to  the  said  act  of  congress,  from  the  use  of  their 
said  moneys,  funds  and  promissory  notes  for  the  payment  of  money, 
commonly  called  bank  notes),  on  the  eighth  day  of  May,  in  the  year 
of  our  Lord,  &c.,  at  the  City  of  Baltimore  aforesaid,  with  force  and 
arms,  &c.  did  wickedly,  falsely,  fraudulently  and  unlawfully  con- 
spire, combine,  confederate  and  agree  together,  by  wrongful  and 
indirect  means  to  cheat,  defraud  and  impoverish  the  said  President, 
Directors  and  Company  of  the  Bank  of  the  United  States,  *  and  by 
subtle,  fraudulent  and  indirect  means  and  divers  artful,  unlawful  and 
dishonest  devices  and  practices,  to  obtain  and  embezzle  a  large  amount 
of  money  and  of  promissory  notes  for  the  payment  of  money,  com- 
monly called  bank  notes,  to  wit,  of  the  amount  and  value  of 
current  money  of  the  United  States,  the  same  being  then  and  there 
the  property  and  part  of  the  proper  funds  of  the  said  President,  Di- 
rectors and  Company  of  the  Bank  of  the  United  States,  from  and  out 
of  the  said  office  of  discount  and  deposit  of  the  said  bank  in  the  city 
'of  Baltimore,  without  the  knowledge,  privity  or  consent  of  the  said 
President,  Directors  and  Company  of  the  Bank  of  the  United  States, 
and  also  without  the  privity,'  consent  or  knowledge  of  the  directors 
of  the  said  office  of  discount  and  deposit  of  the  said  bank  in  the  City 
of  Baltimore,  for  the  purpose  of  having  and  enjoying  the  use  thereof 
for  a  long  space  of  time,  to  wit,  for  the  space  of  two  months,  without 
})aying  any  interest,  discount  or  equivalent  for  the  use  thereof,  and 
without  securing  the  payment  thereof  to  the  said  corporation.  And 
the  more  eflectually  and  securely  to  perpetrate  and  conceal  the  same, 
that  the  said  J.  W.  M'C.  should  (wm  time  to  time  falsely  and  fraudu- 
lently t  state,  allege  and  represent  to  the  said  directors  of  the  said 


3oS  OFFENCES  AGAINST  SOCIETY. 

office  of  discount  and  deposit  in  the  City  of  Baltimore,  that  such 
moneys  and  promissory  notes  so  agreed  to  be  obtained  and  embezzled 
as  aforesaid,  were  loaned  on  good,  sulRcient  and  ample  security  (in 
capital  stock  of  the  said  bank,  pledged  and  deposited  therefor;  and 
also,  should  from  time  to  lime  make  and  fabricate  false  statements 
and  vouchers  respecting  the  same;  and  other  property  and  funds  of 
the  said  corporation,  to  be  laid  before  and  exhibited  to  the  said 
directors  of  the  said  office  of  discount  and  deposit  of  the  said  bank 
in  the  City  of  Baltimore).  And  that  the  said  (G.  W.)  J.  A.  B.  and  J. 
\V.  M'C,  being  such  otficers  of  the  said  corporation  as  aforesaid,  ** 
did  then  and  tliere  in  pursuance  of  and  according  to  the  said  unlaw- 
ful, false  and  wicked  conspiracy  and  confederacy,  combination  and 
agreement  aforesaid,  by  indirect,  subtle  and  wrongful,  fraudulent  and 
unlawful  means,  and  by  divers  artful  and  dishonest  devices  and 
practices,  and  without  the  knowledge,  privity  or  consent  of  the  said 
President,  Directors  and  Company  of  tiie  Bank  of  the  United  States, 
and  without  the  privity,  knowledge  or  consent  of  the  directors  of  said 
office  of  discount  and  deposit  of  the  said  bank  in  the  City  of  Baltimore, 
obtain  and  embezzle  a  large  amount  of  money  and  of  promissory 
notes  for  the  payment  of  money,  commonly  called  bank  notes,  the 
saiTje  being  the  property  and  part  of  the  proper  funds  of  tiie  said 
corporation,  from  and  out  of  their  said  office  of  discount  and  deposit 
in  the  City  of  Baltimore,  to  wit,  the  amount  and  value  of  one  million 
five  hundred  thousand  dollars,  current  money  of  the  United  States, 
for  the  purpose  of  having  and  enjoying  the  use  thereof,  and  did  have 
and  enjoy  the  use  thereof  for  a  long  space  of  time,  to  wit,  for  the 
space  of  two  months,  without  paying  any  interest,  discount  or 
equivalent  therefor,  and  without  securing  the  payment  of  the  said 
moneys  and  the  said  promissory  notes  for  the  payment  of  money 
commonly  called  bank  notes;  and  did  then  and  there  falsely, craftily, 
deceitfully,  fraudulently,  wrongfully  and  unlawfully  keep  and  convert 
the  same  to  their  own  use  and' benefit,  without  the  knowledge,  privity 
or  consent  of  tiie  said  corporation,  and  without  the  knowledge,  privily 
or  consent  of  the  directors  of  the  said  office  of  discount  and  deposit  in 
the  City  of  Jialtiniore;  and  did  then  and  there  the  more  effectually  to 
perpetrate  and  conceal  the  said  conspiracy,  confederacy,  fraud  and 
embezzlement,  cause  and  procure  false  and  fraudulent  representations, 
allegations,  statements  and  voucliers  to  be  made  and  fabricated,  and 
the  same  to  be  exhibited -to  arid  laid  before  the  directors  of  the  said 
office  of  discount  and  deposit  in  the  City  of  Baltimore,  by  the  said  J. 
W.  M'C.  as  cashier  of  the  said  olhce  of  discount  and  deposit,  respecting 
the  said  moneys  and  the  said  promissory  notes  for  the  payment  of 
money  so  obtained  and  embezzUul  as  aforesaid,  in  which  said  re- 
presentations, allegations,  statements  and  vouchers,  it  was  then  and 
there  falsely  and  fraudulently  represented,  alleged  and  exhibited,  that 
the  said  moneys  and  promissory  notes  for  the  payment  of  money,  were 
loaned  on  good,  suffici(;nt  and  am|)le  security,  in  capital  stock  of  the 
said  bank,  pledged  and  def)osited  therefor.  When  in  truth  and  in  fact 
no  capital  stock  of  the  said  banic,  and  no  other  security  was  |)ledged 
or  deposited  therefor,  as  the  said  C.  W.,  J.  A.  B.  aiid  .1.  W.  M~'C. 
then  and  there  well  knew;  and  that  the  said  filse,  wicked,  unlawful 


COXSPIRACY.  359 

and  fraudulent  con^^piracy,  confederac}^  and  agreement  above  nien- 
tit)ned,  and  the  said  false,  wicked,  unlawful  and  fraudulent  acts  done 
in  pursuance  tliereof,  above  set  forth,  were  tlien  and  there  made,  done 
and  perpetrated  by  the  said  G.  VV.,  J,  A.  B.  and  J.  W.  M'C.  in  abuse 
and  violation  of  tlieir  duty  and  the  trust  reposed  in  them,  and  the 
oaths  taken  and  lawfully  sworn  by  them  respectively  as  such  officers 
of  the  said  corporation  aforesaid.  And  that  the  said  G.  W.,  J.  A.  B. 
and  J.  VV.  M'C.  did  then  and  thereby,  falsely,  wickedly,  fraudulently, 
wrongfully  and  unlawfully  impoverish,  cheat  and  defraud  the  said 
President,  Directors  and  Company  of  the  Bank  of  the  United  States,  to 
the  great  damage  of  the  said  president,  directors  and  company,  to  the 
evil  example  of  all  others  in  like  manner  oilending,  and  against  &c. 
[Conclude  as  in  book  1,  chap.  3). 

Against  same  for  conspiring  to  obtain  by  fraudulent  means  the  temporarij 
use  of  a  large  quantity  of  notes  belonging  to  said  bank  without  pay- 
ing interest  fur  tliem. 

That  the  said  G.  \V.,  so  being  one  of  the  directors  of  said  Bank 
of  the  United  States  at  Philadelphia,  to  wit,  at  Baltimore  aforesaid; 
and  the  said  J.  A.  B.,  so  being  president  of  the  said  office  of  dis- 
count and  deposit  of  the  said  bank  in  the  City  of  Baltimore;  and 
the  said  J.  W.  M'C,  so  being  cashier  of  the  said  office  of  discount  and 
deposit  of  the  said  bank  in  the  City  of  Baltimore,  being  evil  disposed 
and  dishonest  jtersons,  and  wickedly  devising  and  contriving  and 
intending,  falsely,  unlawfully,  fraudulently,  craftily  and  unjustly,  and 
by  indirect  means  to  cheat  and  impoverish  the  said  President,  Direc- 
tors and  Company  of  the  Bank  of  the  United  States,  and  to  defraud 
ihem  of  their  moneys,  funds  and  promissory  notes  for  the  payment  of 
money,  commonly  called  bank  notes,  and  of  their  honest  and  fair 
gains  to  be  derived  under  and  pursuant  to  the  said  act  of  congress, 
from  the  use  of  their  said  moneys,  funds  and  promissory  notes  for  the 
payment  of  money,  connnonly  called  bank  notes,  afterwards,  to  wit,  on 
the  eighth  day  of  May,  in  the  year  of  our  Lord,  (S:c.,at  the  City  of  Balti- 
more aforesaid,  with  force  and  arms,  &,c.,  did  wickedly,  falsely,  fraudu- 
lently and  unlawfullyconspire, combine, confederate  and  agree  together 
by  wrongful  and  indirect  means  to  cheat,  defraud  and  impoverish  the 
said  President, Directors  and  Company  of  the  Bank  of  the  United  States, 
and  by  subtle,  fraudulent  and  indirect  means  and  divers  artful,  unlaw- 
ful and  dishonest  devices  and  practices,  to  obtain  and  embezzle  a  large 
amount  of  money  and  promissory  notes  for  the  paynient  of  money, 
commonly  callecl  bank  notes,  to  wit,  of  the  amount  and  value  of  one 
million  five  hundred  thousand  dollars,  current  money  of  the  United 
States,  the  same  being  then  and  there  the  property  and  part  of  the 
proper  funds  of  the  said  President,  Directors  and  Company  of  the  Bank 
of  the  United  States,  from  and  out  of  the  said  office  of  discount  and  de- 
posit of  the  said  bank  in  the  City  of  Baltimore,  without  the  knowledge, 
))rivity  or  consent  of  the  said  President,  Directors  and  Company  of  the 
Bank  of  the  United  States,  and  also  without  tiie  privity,  consent  or 
knowledge  of  the  directors  of  the  said  otiice  of  discount  and  deposit 
of  said  bank  in  the  City  of  Baltimore,  for  the  purpose  of  having  and 


3G0  OFFEVCES  AGAINST  SOCIETY. 

enjoying  the  use  thereof  for  a  long  space  of  time,  to  wit,  for  the  space 
of  two  months,  without  paying  any  interest,  discount  or  equivalent 
for  the  use  thereof,  and  witiiout  securing  the  payment  thereof  to  the 
said  corporation  ;  and  that  the  said  false,  wicked,  unlawful  and  fraud- 
ulent conspiracy,  confederacy  and  agreement  above  mentioned,  were 
then  and  there  madfe,  done  and  perj)etrated  by  the  said  G,  W.,  J.  A. 
]1  and  J.  W.  M'C,  in  abuse  and  violation  of  tlieir  duty  and  the  trust 
reposed  in  them,  and  the  oaths  taken  and  lawfully  sworn  by  them 
respectively  as  such  officers  of  the  said  corporation  as  aforesaid,  to 
the  great  damage  of  the  said  president  directors  and  company,  to  the 
evil  example  of  allothers  in  like  manner  offending,  and  against  &.c. 
{Conclude  us  in  book^l,  chap.  3). 

.igajnsl  same  for  conspiring  to  appropriate  several  hills  of  exchange,  6^-c. 

Same  as  count  oji  p.  357,  omitting  passages  in  brackets  clown  to 
*  and  proceed:  and  that  in  pursuance  of  and  according  to  the  said 
unlawful,  false  and  wicked  conspiracy,  confederacy,  combination  and 
agreement  aforesaid,  the"~said  J.  W.  M'C.  did  then  and  there  fraudu- 
lently, secretly  and  contrary  to  the  duties  of  his  office,  give  and  deliver 
over  to  the  said  J.  A.  B.,  and  the  said  J.  A.  B,  did  then  and  there 
fraudulently,  secretly  and  contrary  to  the  duties  of  liis  office,  receive 
and  take,  for  the  piu'pose  of  having  and  enjoying  the  benefit  and  use 
of  the  same  for  a  long  space  of  time,  to  wit,  for  the  space  of  four 
months,  without  the  privity,  knowledge  or  consent  of  the  said  Presi- 
dent, Directors  and  Company  of  the  Bank  of  the  United  States,  and 
without  the  privity,  knowledge  or  consent  of  the  directors  of  the  said 
office  of  discount  and  deposit  of  the  said  bank  at  Baltimore,  as  afore- 
said, and  without  securing  the  payment  of  tlie  value  or  amount  of  the 
same,  certain  bills  of  exchange,  the  number  whereof  is  unknown  to 
the  jurors  aforesaid,  drawn  upon  a  certain  person  or  certain  persons 
in  London,  to  the  jurors  aforesaid  unknown,  to  the  amount  in  the 
whole  of  six  thousand  and  eighty  pounds  sterling,  lawful  money  of 
Great  Britain,  and  equal  in  value  to  twenty-seven  thousand  twenty- 
two  dollars  and  twenty-two  cents,  lawful  money  of  the  United  States; 
which  said  bills  of  exchange,  he  the  said  J.  W.  M'C.  had  previously 
thereto  received  and  taken,  by  virtue  of  his  office  of  cashier  as  afore- 
said, in  payment  of  a  debt  which  was  then  and  there  due  to  the  said 
President,  Directors  and  Company  of  the  Bank  of  the  United  States,  by 
the  Farmers'  and  Mechanics'  Bank  of  Georgetown  in  the  District  of 
Columbia,  and  which  said  bills  of  exchange  were  then  and  there  in 
the  custody  and  possession  of  him  the  said  J.  W.  M'C,  he  being  such 
cashier  as  aforesaid,  as  the  ])roperty  and  part  of  the  proper  funds  of 
the  said  President,  Directors  and  Company  of  the  Bank  of  the  United 
States  ;  and  the  more  effectually  to  perpetrate  and  conceal  the  same, 
and  in  further  pursuance  of  the  said  conspiracy,  confederacy,  combi- 
nation and  agreement,  the  said  J.  W.  M'C.  did  then  and  there,  with 
the  knowledge,  privity  and  consent  of  the  said  J.  A.  B., cause  and  pro- 
cure false  and  fraudulent  allegations,  representations  and  statements 
to  be  made  and  fabricated,  and  exhibit  tlie  same  to,  and  lay  the 
same  before  the  directors  of  the  said  office  of  discount  and  deposit  of 


CONSPIRACY.  361 

the  said  Bank  of  the  United  States  in  the  City  of  Baltimore,  in  which 
said  allegations,  representations  and  statements,  the  said  Farmers'  and 
Mechanics'  Bank  of  Georgetown  was  designedly  and  falsely  repre- 
sented as  owing  the  aforesaid  debt,  for  the  payment  of  which  the 
aforesaid  bills  had  been  previously  received  and  accepted  by  him,  the 
said  J.  W.  M'C,  as  aforesaid ;  and  the  same  J.  W,  M'C.  being  such 
cashier  as  aforesaid,  fraudulently  and  wickedly  and  with  the  privity, 
knowledge  and  consent  of  the  said  J.  A.  B.,  then  and  there  caused  and 
procured  that  no  entry  or  notice  of  the  receipt  of  the  said  bills  of  ex- 
change, or  of  the  delivery  of  them  to  the  said  J.  A.  B.,  should  be  taken 
or  made  in  the  books  of  account  of  the  said  otiice  of  discount  and  de- 
posit in  the  City  of  Baltimore,  and  that  no  credit  for  the  said  bills  of 
exchange  should  be  given  to  the  said  Farmers'  and  Mechanics'  Bank 
of  Georgetown  in  the  said  books  of  accounts;  and  that  the  said  false, 
wicked,  unlawful  and  fraudulent  conspiracy,  confederacy  and  agree- 
ment above  mentioned,  and  the  said  false,  wicked,  unlawful  and 
fraudulent  acts,  done  in  pursuance  thereof,  above  set  forth,  were  then 
and  there  made,  done  and  perpetrated  by  the  said  J.  A.  B.  and  J,  W. 
M'C,  in  abuse  and  violation  of  their  duty  and  the  trust  reposed  in 
them,  and  the  oaths  taken  and  lawfully  sworn  by  them  respectively, 
as  such  officers  of  the  said  office  of  discount  and  deposit  of  the  said 
bank,  in  the  City  of  Baltimore  as  aforesaid  ;  and  that  the  said  J.  A. 
B.  and  J.  W.  M'C.  did  then  and  there,  thereby  falsely,  wickedly, 
fraudulently,  wrongfully  and  unlawfully  impoverish,  cheat  and  de- 
fraud the  said  President,  Directors  and  Company  of  the  Bank  of  the 
United  States,  to  the  great  damage  of  the  said  President,  Directors  and 
Company  of  the  said  Bank  of  the  United  States,  to  the  evil  example 
of  all  others  in  like  manner  olfending,  and,  against,  &c.  {Concludt 
as  i?i  book  1,  chap.  3).  ,      .. 

Against  same  for  obtaining  money  from  the  bank  by  means  of  fake  entries 
and  a  fictitious  draft. 

Same  as  coimt  on  p.  356,  down  to  **,  leaving  out  passages  in 
brackets,  and  inserting  at  t  the  averment  "cause  false  entries  to  be 
made  in  the  books  of  the  said  office  of  discount  and  deposit,  whereby 
it  should  be  falsely  and  fraudulently  stated  and  represented,  and 
should  falsely  and  ir:ind\\\e\\i\Y,"  and  then  proceed: 

He  the  said  J.  A.  B.,  with  privity,  knowledge  and  consent  of  the 
said  J.  W.  M'C.  and  without  the  privity,  knowledge  and  consent 
of  the  said  President,  Directors  and  Company  of  the  Bank  of  the 
United  States,  and  without  the  knowledge,  privity  or  consent  of 
the  directors  of  the  said  othce  of  discount  and  deposit  of  the  said 
bank  in  the  City  of  Baltimore,  did  then  and  there,  in  pursuance 
of  and  according  to  the  said  unlawful,  false  and  wicked  conspi- 
racy, confederacy,  combination  and  agreement  aforesaid,  fraudu- 
lently obtain,  draw  out,  take  and  embezzle,  for  the  purpose  of  apply- 
ing the  same  to  his  own  proper  use,  and  without  securing  the  repay- 
ment of  the  same  promissory  notes  for  the  payment  of  money,  com- 
monly called  bank  notes,  and  moneys  to  a  large  amoiuit  in  the  whole, 
to  wit,  to  the  amount  of  twenty-five  thousand  dollars,  lawful  money 
31 


3G2  OFFENCES  AGAINST  SOCIETY. 

of  tlie  United  States,  the  property  and  part  of  the  proper  funds  of  the 
said  President,  Directors  and  Company  of  the  Bank  of  tlie  United  States, 
entrusted  to  and  managed  by  the  directors  of  their  said  office  of  dis- 
count and  deposit  in  the  City  of  BaUimore  aforesaid  ;  and  that  they, 
the  said  J.  A.  B.  and  J.  W.  M'C,  the  more  effectually  to  perpetrate 
and  conceal  the  same,  and  in  turtlier  pursuance  of  the  said  conspiracy, 
confederacy,  combination  and  agreement,  afterwards,  to  wit,  on  the 
day  and  year  aforesaid,  and  at  tlie  place  aforesaid,  did  procure  and 
cause  to  be  made  false  entries  on  the  books  of  the  said  office  of  dis- 
count and  deposit,  falsely  representing,  and  did  then  and  there  falsely 
and  fraudulently  represent  and  allege  to  the  directors  of  the  said  office 
of  discount  and  deposit  of  the  said  Bank  of  the  United  States,  that  the 
said  promissory  notes  for  the  payment  of  money,  commonly  called 
bank  notes,  and  moneys  were  loaned  on  good,  sufficient  and  ample 
security,  to  wit,  on  a  draft  for  the  payment  of  a  large  sum  of  money, 
that  is  to  say,  a  like  sum  of  twenty-five  thousand  dollars,  drawn  by  a 
certain  commercial  firm  then  carrying  on  trade  and  commerce  in  the 
City  of  Baltimore,  under  the  name  and  style  of  S.  S.  and  B.,  upon  one 
D.  C.  H.  of  the  State  of  Louisiana,  pledged  and  delivered  therefor, 
which  said  draft  had  been  remitted  to  the  office  of  discount  and  de- 
posit of  the  said  Bank  of  the  United  States  in  the  City  of  New  Or- 
leans (which  said  ofiice  last  mentioned  was  then  and  there  legally 
estabhshed  at  New  Orleans,  to  wit,  at  Baltimore  aforesaid),  and  that 
the  said  office  of  discount  and  deposit  last  mentioned,  was  truly  and 
justly  accountable  therefor,  whereas  in  fact  and  in  truth,  the  said 
entries  so  made  and  procured  were  false  ;  neither  was  such  draft  for 
the  payment  of  money,  nor  was  any  other  security  pledged  or  de- 
livered therefor,  as  they  the  said  J.  A.  B.  and  J.  W.  M'C.  then  and 
there  well  knew:  and  that  the  said  false,  wicked,  unlawful  and  fraud- 
ulent conspiracy,  confederacy  and  agreement  above  mentioned,  and 
tlie  said  false,  wicked,  unlawful  and  fraudulent  acts  done  in  pursuance 
thereof,  above  set  forth,  wef^e  then  and  there  made,  done  and  perpe- 
trated by  the  said  J,  A.  B.  and  J.  W.  M'C.  in  abuse  and  violation  of 
their  duty  and  the  trust  reposed  in  them,  and  the  oaths  taken  and 
sworn  by  them  respectively,  as  such  officers  of  the  said  office  of  dis- 
count and  deposit  ol  the  said  bank  as  aforesaid  :  and  that  the  said  J. 
A.  B.  and  J.  W.  M'C.  did  then  and  there,  thereby  falsely,  wickedly, 
fraudulently,  wrongfully  and  unlawlully  imi)overish,  cheat  and  de- 
fraud the  said  President,  Directors  and  Company  of  the  Bank  of  the 
United  Slates,  to  the  great  damage  of  the  said  president,  directors  and 
company,  to  the  evil  example  of  all  others  in  like  manner  oflending, 
and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Conspiracy  and  cheat,  under  pretence  of  being  a  merchant,  with  overt 
act.{(j) 

That  P.  R.,  J.  B.  and  A.  F.,  all  late  of,  &c.,  yeomen,  being  persons 
of  fvil  name  and  fame  and  dishonest  cojiversation,  and  not  caring  to 
gel  their  livelihood  by  honet>l  labour,  but  by  fraud  and  deceit,  main- 

<(])  Dr;iwn  in  17P0  l>y  Mr.  Drjidforc!,  tlinn  tittornry-gcncral  of  Pennsylvania. 


CnXSPIRACV. 


303 


taining  their  idle  course  of  life,  on,  &c.,  at,  &c.,  with  force  and  arms, 
unlawfully  and  wickedly  among  themselves  did  combine,  conspire 
and  agree  together  one  M.  E.,  widow,  there  resident,  of  her  goods 
and  chattels,  to  wit,  of  a  large  quantity  of  oaken  staves  and  heading, 
of  the  value  of  fifty  pounds,  lawful  money  of  Pennsylvania,  and  more 
falsely  and  fraudulently  by  false  pretences,  deceit,  practice  and  covin, 
to  cheat,  deceive  and  defraud,  contrary,  &c.,  and  against,  &-c.  {Con- 
clude as  in  book  1,  chap.  3). 

In  pursuance  of  such  their  wicked  conspiracy,  combination  and 
agreement  aforesaid,  the  said  P.  R.,  afterwards,  to  wit,  on,  &c.,  deceit- 
fully bargained  with  the  said  JM.  E.,  to  deliver  to  him,  the  said  P., 
four  thousand  nine  liundred  and  fifty  hogsheads'  staves  and  two 
thousand  two  hundred  hogsheads'  heading,  to  the  value  of  fifty-two 
pounds  eighteen  shillings  and  fourpence,  and  upon  such  bargaining 
the  said  P.  R.  falsely  took  upon  himself  and  pretended  to  be  a  mer- 
chant, resident  in  the  City  of  Philadelphia,  and  then  and  there  per- 
sonated a  merchant  of  Philadelphia  as  if  he  had  been  a  true  merchant, 
and  that  he  the  said  P.  would  duly  pay  to  the  said  M.  the  aforesaid 
sum  when  he  should  be  desired  so  to  do,  and  that  the  said  A.  F.  then 
and  there  took  upon  himself  and  pretended  to  be  a  labourer,  employ- 
ed and  paid  by  him  the  said  P.,  to  receive  and  move  the  said  staves 
and  headings,  and  then  and  there  did  falsely  atfirm  to  the  said  M.  E., 
that  the  said  P.  was  a  merchant  as  aforesaid,  ami  that  the  aforesaid 
]M.  E.  giving  credit  to  the  said  fictilious  assumptions',  personatings  and 
deteits,  did  then  and  there  deliver  to  the  said  P.  R.  and  A.  F.,  the 
said  staves  and  headings,  of  the  value  aforesaid  ;  whereas,  in  fact  and 
in  truth,  the  said  P.  R.  was  not  a  true  merchant  as  aforesaid,  nor  was 
he  used  to  get  his  living  by  buying  and  selling,  nor  was  the  said  A. 
F.  a  labourer  employed  and  paid  by- the  said  P.  in  manner  aforesaid, 
nor  did  the  said  P.,  A.  or  J.,  or  either  of  them,  intend  or  design  to  pay- 
or satisfy  the  said  ]\1.  E.  for  the  said  staves,  but  the  same  to  their  own 
use  afterwards,  to  wit,  on  the  same  day  and  year,  fraudulently  did 
dispose  and  convert,  and  tiie  said  M.  of  the  same  did  then  and  there 
cheat  and  defraud,  to  the  great  damage  of  her  the  said  I\I.,  contrary, 
&c.,  and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

That  the  said  J.,  afterwards,  on,  &c.,  in  further  pursuance  of  such 
their  wicked  intention,  in  conspiracy  and  agreement  as  aforesaid,  at, 
&c.,  falsely  did  pretend  and  affirm  to  the  said  M.  E.  that  the  said  P. 
R.  was  a  merchant  as  aforesaid,  and  that  the  said  P.  R.  was  then  sick 
and  had  sent  him  the  said  J.  to  purchase  a  further  quantity  of  staves 
of  her  the  said  M.,  with  an  intent  to  defraud  and  cheat  the  said  M. 
of  a  further  large  quantity  of  staves  in  manner  aforesaid,  to  the  evil 
example  of  all  others  in  the  like  case  offending,  to  the  great  damage 
of  her  the  said  M.,  contrary,  &.C.,  and  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

Conspiracy  to  sell  lottery  iichets.{r) 
That  defendants,  &c.,  did  conspire  to  sell  and  expose  to  sale,  and 

(r)  Com.  c.  Gillespie,  7  S.  &.  R.  4G9  ;  see  this  form  examined  ante,  note  to  p.  333,  337. 


364  OFFENCES   AGAINST  SOCIETY. 

cause  and  procure  to  be  sold  and  exposed  to  sale,  a  lottery  ticket, 
and  tickets  in  a  lottery  not  authorized  by  the  laws  of  this  common- 
wealth, against,  &.c.     [Conclude  as  in  book  1,  chap.  3). 

Conspiracy  for  enticing  a  person  to  play  at  unlawful  games,  ^c.{s) 

That  J.  D.,  G.  B,  and  J.  D,,  all  late  of,  &c,,  yeomen,  on,  &,c.,  un- 
lawlully,  wickedly  and  deceitfully  did  combine,  conspire  and  agree 
together  to  cheat  and  defraud  one  S.  B.,  and  his  goods  and  moneys, 
by  art,  practice  a:nd  fraud,  into  their  custody  and  possession  to  obtain 
and  get ;  and  in  pursuance  of  such  their  unlawful  and  wicked  con- 
spiracy and  agreement  aforesaid,  they  the  said  J.  D.,  G.  B,  and  J.  D., 
afterwards,  to  wit,  the  same  day  and  year,  and  at,  &c.,  did  challenge 
and  provoke  him  the  said  S.  B,,  at  a  certain  unlawful  game  at  cards 
to  play  and  game  for  money,  and  then  and  there  by  fraud,  deceit,  art, 
practice  and  covin  at  the  said  unlawful  game,  and  by  laying  wagers 
thereon,  did  unlawfully  and  fraudulently  obtain  and  get  into  their 
possession,  the  sum  of  six  pounds  seven  shillings  and  sixpence,  of 
the  moneys  of  the  said  S.  B.,  and  the  same  moneys  then  and  there 
did  take  and  carry  away,  to  the  evil  example,  &c.,  contrary,  &c.,  and 
against,  &c.     (Conclude  as  in  book  1,  chap.  3). 

Conspiracy  to  make  a  great  riot  and  to  demolish  walls,  buildings  and 
fences,  ivith  overt  acts.{t) 

That  A.  B.,  late  of,  &c.,  {naming  the  other  defendants),  together 
with  divers  other  evil  disposed  persons,  to  the  jurors  aforesaid  as  yet 
unknown,  heretofore,  to  wit,  on,  &c.,  with  force  and  arms,  at,  &c., 
aforesaid,  did  unlawfully  conspire,  combine,  confederate  and  agree 
together  unlawfully,  riotously  and  routously  to  break  down,  pull 
down,  prostrate,  demolish  and  destroy  a  certain  wall,  and  certain 
other  erections,  buildings,  posts,  pales,  rails  and  fences  of  one  C.  D., 
there  then  erected,  standing  and  being  near  a  certain  dwelling  house 
and  premises  of  the  said  C.  D.,  there  situate.  And  the  jurors,  &c., 
that  in  pursuance  of  the  said  conspiracy,  combination,  confederacy 
and  agreement  so  as  aforesaid  had,  they  the  said  A.  B.,  &c.,  after- 
wards, to  wit,  on,  &c.,  aforesaid,  at,  &:c,,  aforesaid,  with  Ibrce  and 
arms,  did  unlawfully,  riotously  and  routously  assemble  and  meet  to- 
gether, near  to  the  said  dwelling  nouse  and  premises  of  the  said  C. 
D.,  and  near  to  tlie  dwelling  houses  and  premises  of  divers  other  liege 
subjects  of  the  said  state,  there  and  being  so  assembled  and  met  to- 
gether, then  and  there  unlawfully,  riotously  and  routously  did  make 
a  great  noise,  riot,  disturbance  and  ati'ray,  and  staid  and  continued 
there  making  such  noise,  riot,  dislurbance  and  affray,  for  a  long  time, 
to  wit,  lor  the  space  of  five  hours,  and  thereby  for  and  during  all  that 
time,  there  greatly  disturbed,  disgusted,  t(,'rrified  and  alarmed  the  said 
C.  D.  and  his  wife  and  family,  in  the  peaceable  possession  and  enjoy- 
ment of  his  said  dwelling  house  and  premises,  and  also  greatly  dis- 
cs) Drawn  by  Mr.  Jarcd  Injjersoll,  attornoy-gcncral  of  Pennsylvania,  in  1789. 
(<)  Dickinboii's  Q.  fci.  6tli  cd.  353. 


COiVSriRACY. 


305 


tiirbod,  disquieted,  terrified  and  alarmed  tiie  said  other  liege  subjects 
of  the  said  state,  and  residing  in  the  said  dwelling  houses  and  pre- 
mises, and  then  and  there  unlawfully,  riotously  and  routously  did 
break  down,  pull  down,  prostrate,  deniolisli  and  destroy  great  part  of 
the  said  wall,  to  wit,  twenty  perches  of  the  said  wall,  then  and  there 
standing  and  being,  and  the  materials  thereof,  to  wit,  five  hundred 
bricks,  of  a  large  value,  to  wit,  &c.,  unlawfully,  riotously,  routously 
and  wantonly  did  cast  and  scatter  into  and  about  the  common  and 
public  highway  of  the  said  state  there,  to  the  great  damage  and  ter- 
ror of  the  good  citizens  of  said  state,  and  against  the  peace,  &.c.  {Con- 
clude as  in  book  1,  chap.  3). 

Second  count,  wilkout  overt  acts.  ^ 

That  the  said  A.  B.,  &c.,  together  with  divers  other  evil  disposed 
persons,  to  the  jurors  as  aforesaid  as  yet  unknown,  heretofore,  to  wit, 
on,  &c.,' aforesaid,  with  force  and  arms,  at,  &c.,  aforesaid,  did  unkiw- 
fully  conspire,  combine,  confederate  and  agree  together  unlawfully  to 
break  down,  demolisli,  prostrate  and  destroy  certain  other  erections, 
buildings,  posts,  pales,  rails  and  fences  there  then  standing,  and 
being  the  property  of  and  belonging  to  the  said  citizens  of  said  state, 
there  then  inhabiting  and  residing,  against  the  peace,  &.c.  {Conclude 
as  in  book  1,  chap.  3). 

Conspiracy  to  prevent  hy  force  and  arms,  the  use  of  the  English  lan- 
guage in  a  German  congregation,  and  to  oppose  ^' irith  their  bodies 
and  lives,"  and  by  all  means  lanful  and  unlawful,  the  introduction  of 
any  other  language  but  the  German.     Overt  acts,  riot  and  assault.{u) 

That  F.  E.  et  al.,  on,  &c^  were  members  of  the  German  Evangeli- 
cal Lutheran  congregation,  in  and  near  Philadelphia.  x-Viid  so  being 
severally  and  respectively  members  of  the  said  congregation,  they 
the  said  F,  E.  et  al.,  unlawfully  and  wickedly  combining,  conspiring 
and  confederating  together  to  acquire  for  themselves  unjust  and  ille- 
gal authority  and  power  in  the  said  congregation,  and  to  distress, 
oppress  and  aggrieve  the  peaceful  citizens  of  this  commonwealth, 
also  members  of  the  said  congregation,  and  to  prevent  them  from  the 
free,  lawful  and  proper  enjoyment  of  the  rights  and  privileges  thereof, 
afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at  the  City  of  Phi- 
ladelphia aforesaid,  and  within  the  jurisdiction  of  this  court,  unlaw- 
fully assembled  and  met  together,  and  being  so  assembled  and  met 
together,  did  then  and  there  unjustly  and  unlawfully  and  oppressively 
conspire,  combine,  confederate  and  agree  together  to  prevent  by  force 

(«)  Com.  V.  Fberle,  Pamph.  218;  3  S.  &  R.  9.  This  indictment  was  prepared  by  very 
eminent  counsel,  and  was  tried  before  Yeatcs  J.,  at  Nisi  Prins,  in  1816.  The  question 
whether  it  set  forth  an  indictable  offence,  was  very  warmly  argued  during  trial,  but  under 
instructions  from  the  court,  the  jury  found  the  defendants  guilty  on  buth  counts.  No 
motion  in  arrest  of  judgment  was  made,  though  a  motion  for  a  new  trial  was  strenuously 
urged  before  the  court  in  banc,  by  the  very  acute  and  expeiienced  counsel  for  the  defend- 
ants, Mr.  Levy  and  Mr.  Rawle.  It  would  seem  from  this,  that  the  correctness  of  the  in- 
dictmcnt  was  conceded  ;  and  in  fact,  in  the  opinions  of  both  Tilghman  C.  J.  and  Yeates  J., 
the  agreement  by  the  defendants  to  oppose  the  introduction  of  the  English  language  "  with 
fheir  bodies  and  lives,"  and  by  all  m-ans  lawful  and  unlawful,  is  treated  as  constituting 
an  indictable  offence,  and  the  overt  acts  are  considered  as  mere  aggravation. 

31* 


3(56  OFFENCES  AGAINST  SOCIETY. 

and  arms,  the  use  of  the  EngHsh  language  in  the  worship  of  Almighty 
God  among  the  said  congregation,  and  for  that  purpose  did  then  and 
there  determine  and  firmly  bind  themselves  before  God,  and  solemnly 
to  each  other,  to  defend  with  their  bodies  and  lives,  the  German 
divine  worsliip,  and  to  oppose  by  every  means  lawful  and  unlawful, 
the  introduction  of  any  other  language  into  the  churches;  and  the 
said  F.  E.  et  al.,  and  each  of  them,  in  pursuance  of  the  said  unlawful 
and  oppressive  conspiracy,  combination,  confederacy  and  agreement 
so  forn^ed  and  made  as  albresaid,  afterwards,  to  wit,  on,  &c.,  at  the 
City  of  Philadelphia  aforesaid,  and  within  the  jurisdiction  of  this 
court,  at  an  election  then  and  there  held  by  the  members  of  said  con- 
gregation for  certain  officers  of  the  same,  to  wit,  for  elders  and  war- 
dens, did  unlawfully  and  oppressively,  and  with  force  and  violence, 
riotously  and  routously  make  and  raise,  and  cause  to  be  made  and 
raised,  a  great  noise,  tumult,  riot  and  disturbance,  and  then  and  there 
in  further  pursuance  of  the  said  unlawful  and  oppressive  conspiracy, 
combination,  confederacy  and  agreement  so  formed  and  made  as 
aforesaid,  did  assault,  beat  and  wound  certain  members  of  the  said 
congregation,  to  wit,  for  the  better  carrying  on  the  said  unlawful  and 
oppressive  conspiracy,  combination,  confederacy  and  agreement  into 
effect  and  execution,  to  the  great  damage,  oppression  and  grievance 
of  the  members  of  the  German  Evangelical  Lutheran  congregation 
in  and  near  Philadelphia  aforesaid,  to  the  evil  -and  pernicious  exam- 
ple, &c.,  arid  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count,  omitting  overt  acts,  and  charging  the  mere  conspiracy. 

Conspiracy  to  produce  abortion  on  a  icoman  not  quick.{v) 

That  the  said  W.  B.  T.,  &c.,  being  persons  of  evil  minds  and  dis- 
positions, on,  &,c.,  at,  &c,,  and  within  the  jurisdiction  of  the  said 
court,  unlawfully  and  wickedly  did  conspire,  combine,  confederate 
and  agree  together,  in  and  upon  the  body  of  one  S.  R.  S.  an  assault 
to  make,  with  a  wicked  intent,  to  wit,  to  cause  and  })rocure  the  said 
S.  to  mifscarry  and  to  bring  forth  a  certain  child,  witli  which  she  was 
then  big  and  pregnant,  dead,  to  the  great  damage  of  the  said  S.,  to 
the  evil  example,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Second  count,  trith  oveit  act. 

That  the  said  W.  B.  T.,  &c.,  being  such  persons  as  aforesaid,  on  the 
day  and  year  aforesaid,  in  the  couniy  aforesaid,  and  within  the  juris- 
diction of  the  said  court,  unlawlully  and  wickedly  did  conspire,  com- 
bine, confederate  and  agree  together  to  cause  and  procure  the  said 
S.  R.  S.  to  miscarry  and  to  bring  forth  a  certain  child,  with  which 
she  was  then  big  and  pregnant,  dead,  to  the  great  damage  of  the  said 
S.  And  the  jurors  aforesaid,  upon  tiieir  oaths  and  affirmations  afore- 
said, do  further  present,  that  the  said  defendants,  in  pursuance  of  and 
according  to  the  said  conspiracy,  combination,  confederacy  and  agree- 
ment between  them  tlie  said  defendants  as  aforesaid  had  on  tlie  day 

(b)  ThcRP  counts  were  sustained  on  special  demurrer,  by  thfi  Supreme  Court  of  Pcan. 
syivania,  in  Corn.  v.  Deinain,  G  Pa.  L.  J.     See  ante,  p.  338. 


CONSPIRACY.  367 

and  year  aforesaid,  in  the  county  aforesaid,  and  witiiin  the  jurisdic- 
tion of  the  said  court,  in  and  upon  the  body  of  the  said  S.,  then  and 
there  being  pregnant  and  big  with  a  certain  other  child,  did  make  an 
assault,  and  her,  the  said  S.,  then  and  there  did  bruise,  wound  and  ill 
treat,  so  that  her  life  was  thereby  greatly  despaired  of,  and  a  certain 
instrument  made  of  silver  or  other  metal,  in  the  shape  and  form  of  a 
hool^,  up  and  into  the  womb  and  body  of  the  said  S.,  then  and  there 
wickedly,  violently  and  inhumanly  did  force  and  thrust,  with  a 
wicked  intent  to  cause  and  procure  the  said  S.,  as  aforesaid,  to  mis- 
carry and  abort  as  aforesaid,  and  to  kill  and  nnn^der  the  said  child, 
by  reason  whereof,  and  by  means  of  which  said  last  mentioned  pre- 
mises, the  said  child  was  killed  and  its  life  destroyed  and  taken  away 
in  its  mother's  womb  ;  and  the  said  S.,  afterwards,  to  wit,  on,  &c.,  in 
the  year  aforesaid,  miscarried  and  was  aborted  of  the  said  child,  being 
a  female  child,  to  the  great  injury  of  the  said  S.,  to  the  evil  example, 
&c.     [Conclude  us  in  book  1,  chap.  3). 

Conspiracy  by  'persons  confined  in  prison,  to  effect  their  own  escape  and 
that  of  other s.{id) 

That  A.  B;,  C.  D.  and  E.  F.,  all  of  said  B.,  labourers,  on,  &c.,  at, 
&c.,  were  persons  lawfully  confined  in  the  commonwealth's  prison, 
situated  in  B.,  in  the  county  aforesaid,  and  then  and  there  lawfully 
detained  in  the  custody  of  the  keeper  of  said  prison,  by  divers  legal 
processes  then  and  there  in  force  against  tliem  the  said  A.  B.,  C.  D. 
and  E.  F.,  [state  the  cause  of  the  detention  of  each  of  the  defendants), 
and  that  said  A.  B.,  C.  D.  and  E.  F.,  unlawfully  contriving  and  in- 
tending to  effect  the  escape  of  themselves  and  divers  other  persons,  to 
the  said  jurors  unknown,  who  were  then  and  there  prisoners  lawfully 
confined  in  the  said  prison,  and  in  the  custody  of  the  keeper  thereof, 
from  out  of  said  prison,  did  then  and  there  conspire,  combine,  confede- 
rate and  agree  together,  unlawfully  to  effect  the  escape  of  them- 
selves the  said  A.  B.,  C.  D.  and  E.  F.,  and  the  said  other  prisoners, 
then  so  lawfully  confined  in  said  prison,  from  and  out  of  the  same  ; 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

The  same  form  may  be  used  when  the  design  of  the  conspirators  is  to 
effect  their  own  escape  only,  and  not  that  of  others,  by  omitting  the  alle- 
gation of  divers  other  persons  then  and  there  lairfulJy  confined,  <^c. 

By  prisoners  fo  escape;  u-ith  overt  act,  attempting  to  blow  up  the  icall  of 
a  prison  icith  gunpowder.{x) 

That  A.  B.,  C.  D.  and  E.  F.,  late  of,  &c.,  labourers,  at  the  time  next 
hereafter  mentioned,  were  prisoners  lawfully  confined  in  the  com- 
monwealth's prison,  situated  in  B.  aforesaid,  in  the  county  aforesaid, 
and  then  and  there  lawfully  detained  in  the  custody  of  the  keeper  of 
said  prisoners,  by  virtue  of  divers  legal  processes  then  in  legal  force 
against  tliem;  and  that  the  said  A.  B.,  C.  1).  and  E.  F.,  contriving 
and  intending  to  break  down,  blow  up,  demolish,  prostrate  and  des- 

(jo)  3  Chit.  C.  L.  1150. 

(x)  3  Chit.  C.  L.  1151 ;  D^vLs'  Prec.  lOS. 


8G8  OFFEiVCES  AGAIN'ST  SOCIETY. 

troy  a  certain  part  of  the  wall  of  said  prison  belonging  to  and  enclos- 
ing the  same,  and  thereby  to  effect  the  escape  of  themselves  and  of 
divers  other  prisoners,  then  lawfully  confined  in  said  prison,  and  in 
the  lawful  custody  of  the  keeper  thereof,  from  and  out  of  the  said 
prison,  on  the  day  of  now  last  past,  at  in  the  county 

aforesaid,  did  unlawfully  and  wickedly  conspire,  combine,  confederate 
and  agree  among  themselves  for  the  purpose  aforesaid;  and  that  in 
pursuance  of  and  according  to  the  conspiracy,  combination,  confede- 
racy and  agreement  aforesaid,  so  as  aforesaid  had  among  themselves, 
they  the  said  A.  B.,  C.  D.  and  E.  F.  did  then  and  there  make  and 
cause  and  procure  to  be  made  a  certain  large  hole  and  breach  in  the 
said  wall  of  the  said  prison,  of  the  length  of  six  feet,  and  of  the  width 
of  six  feet;  and  then  and  tliere  unlawfully  and  wickedly  put,  placed 
and  laid  a  large  quantity  of  gunpowder,  to  wit,  ten  pounds  of  gun- 
])owder,  into  the  said  hole  and  breach,  so  as  aforesaid  made  in  the 
wall  aforesaid,  with  intent  to  sef  fife  to  the  said  gunpowder,  and 
thereby  to  break  down,  blow  up,  demolish,  prostrate  and  destroy  part 
of  the  said  wall,  and  by  the  means  last  mentioned  to  effect  the  escape 
of  themselves  and  the  said  other  prisoners  so  confined  in  the  said 
j»rison,  and  in  the  lawful  custody  of  tlic  keeper  thereof,  from  and  out 
of  the  same,  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

By  vrisoners  to  effect  their  escape ;  with  overt  act,  hrealdng  down  part 
of  the  wall  of  the  prison.{ij) 

That  A.  B.,  C.  D.  and  E.  F.,"  all  of  labourers,  at  the  time 

next  hereafter  mentioned,  were  prisoners,  lawfully  confined  in  the' 
commonwealth's  prison  situated  at  B.,  in  the  county  aforesaid,  and 
then  and  there  lawfully  detained  in  the  custody  of  the  keeper  of  said 
prison  by  divers  legal  processes  then  in  force  against  them;  and  that 
they  the  said  A.  B.,  C.  D.  and  E,  F.,  unlawfully  contriving  and  in- 
tending to  break  down,  demolish,  prostrate  and  destroy  part  of  the 
wall  belonging  to  and  enclosing  the  said  prison,  and  thereby  unlaw- 
fully to  effect  the  escape  of  themselves,  the  said  A.  B.,  C.  D.  and  E. 
F.,  and  divers  other  prisoners  then  lawfully  confined  in  said  prison, 
and  in  the  custody  of  the  keeper  thereof,  from  and  out  of  the  .'-anie, 
on  at  in  the  county  aforesaid,  did  unlawfully  conspire, 

combine,  confederate  and  agree  among  themselves,  and  meet  together 
for  tlie  purposes  aforesaid;  and  being  so  assembled  and  met  together, 
did  then  and  there,  in  pursuance  of  the  conspiracy^  combination,  con- 
federacy and  agreement  aforesaid,  so  as  atbresaid  had  among  them- 
selves, unlawfully  and  wickedly  begin  to  break  down,  demolish, 
prostrate  and  destroy  part  of  the  said  wall,  with  intent  thereby  un- 
lawfully to  effect  the  escape  of  themselves  and  the  said  other  prison- 
ers so  there  confined  in  the  said  prison,  and  in  the  custody  of  the 
keeper  thereof;  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 


(y)  3  Ciiit.  C.  L.  1151  ;  Davis'  Free.  106. 


coNSPiRAcy.  369 

Conspiracy  to  impose  on  the  public,  by  the  manufacture  of  spurious 
indigo,  loith  intent  to  sell  the  same  as  genuine  indigo  of  the  best 
quality.iz) 

That  A.  B.,  C.  D.  and  E.  F.,  all  of  B.,  in  the  County  of  S.,  labour- 
ers, devising  and  fraudulently  intending  to  acquire  and  get  into  their 
hands  and  possession  the  moneys,  goods  and  property  of  the  citizens 
of  this  connnonwealth,  by  fraudulent  and  dishonest  means,  on,  &c., 
at,  &c.,  did  falsely,  fraudulently  and  unlawfully  conspire,  combine, 
confederate  and  agree  among  themselves,  to  mix,  compour)d  and 
manufacture  certaiu  articles  and  materials  hereafter  mentioned,  into 
the  form  and  colour  and  to  the  resemblance  of  good  and  genuine 
indigo  of  the  best  quality,  and  of  foreign  growth  and  manufacture, 
with  the  fraudulent  intent  and  design,  that  the  base  materials  to  be 
mixed,  compounded  and  manufactured  as  aforesaid,  should  be  ex- 
posed to  sale,  and  that  the  same  should  in  fact  be  sold  to  the  citizens 
of  this  commonwealth  and  others  as  and  for  good  and  genuine  indigo 
of  the  best  quality  and  of  foreign  growth  and  manufacture.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
the  said  A.  B.,  C.  D.  and  E.  F.,  in  pursuance  of  and  according 
to  the  conspiracy,  combination,  confederacy  and  agreement  aforesaid, 
so  as  aforesaid  had  among  themselves,  on  the  day  and  year  last  afore- 
said, at  B.  aforesaid,  in  the  county  aforesaid,  did  fraudulently  mix 
and  compound,  with  a  certain  quantity  of  genuine  indigo  of  foreign 
growth  and  manufacture,  certain  other  articles  and  materials,  to  wit, 
starch,  blue  vitriol,  nutgalls,  alum  and  a  decoction  of  logwood,  in 
such  quantities  and  proportion,  as  thereby  to  increase  the  quantity  of 
the  aforesaid  genuine  indigo,  when  mixed  and  compounded  as  afore- 
said, to  three  times  the  quantity  and  number  of  pounds'  weight 
thereof,  and  having  so  mixed  and  compounded  the  same,  did  then 
and  there  so  manufacture  and  work  up  the  same  and  the  base  mate- 
rials and  composition  aforesaid,  as  to  give  the  same  the  false  appear- 
ance and  resemblance  of  good  and  genuine  indigo  of  the  best  quality 
and  of  foreign  growth  and  manufacture,  and  with  the  fraudulent  in- 
tent and  purpose,  that  the  purchaser  or  purchasers  thereof  should  be 
cheated  and  defrauded,  against,  &c.  {^Conclude  as  in  book  1,  chap.  3). 

Conspiracy  to  publish  frauduleut  bank  notes  with  intent  to  cheat  the 
public.{a) 

That  J.  W.  R.,  late  of,  &c.,  yeoman,  and  N.  C,  late  of,  &c.,  yeo- 
man, devising  and  fraudulently  intending  to  acquire  and  get  into  their 
hands  and  possession,  the  moneys,  goods  and  property  of  the  citizens 

(2)  This  form  is  the  same  as  that  used  in  Coin.  v.  Judd,  2  Mass.  329,  with  the  exception 
of  the  alterations  there  recommended  by  the  court.  "The  latter  part  of  the  indictment 
in  this  case,"  says  Mr.  Davis,  (Prec.  105),  "  is  left  out  of  this  precedent,  which  is  conform- 
able to  the  decision  of  the  court.  The  chief  justice  and  defendant's  counsel  speak  of  the 
different  counts  in  the  indictment.  There  was  but  one  count  in  the  indictment,  and  when 
the  second  and  third  counts  are  referred  to,  it  can  apply  only  to  the  ditferent  alleg-ations 
in  the  body  of  the  itidiclment,  introduced  as  usual,  by  the  words,  '  and  tiic  jurors  aforesaid, 
U[)on  their  oaths  aforesaid,  do  furtlu^r  present.'" 

(u)  This  form  was  sustained  in  Com.  v.  Clary,  4  Barr  210. 


370  OFFENCES  AGAINST  SOCIETY. 

of  this  commonwealth  by  fraudulent  and  dislionest  means,  on,  &c.,  at 
Pittsburg,  in  the  county  aforesaid,  did  falsely,  fraudulently  and  un- 
lawfully conspire,  combine,  confederate  and  agree  among  themselves 
to  make,  utter  and  publish  certain  false,  forged  and  counterfeited  bank 
notes  of  the  Mineral  Bank  of  JNIaryland,  in  the  form  and  to  the  re- 
semblance of  good,  genuine  and  true  bank  notes  of  the  Mineral  Bank 
of  Maryland,  with  the  fraudulent  intent  and  design  tiiat  the  said  false, 
forged  and  counterfeited  bank  notes  of  the  said  Mineral  Bank  of 
Maryland,  should  be  uttered,  published,  paid  and  passed  to  the  citi- 
zens of  this  commonwealth  and  others,  as  and  for  good,  genuine  and 
true  bank  notes  of  the  Mineral  Bank  of  Maryland,  and  with  intent  to 
cheat  and  defraud  the  President,  Directors  and  Company  of  the 
Alineral  Bank  of  Maryland.  and{J))  divers  the  good  citizens  of  this 
commonwealth,  contrary  to  the  form  of  the  act  of  the  general  as- 
sembly in  such  case  made  and  provided,{b)  to  the  evil  example, 
&c.,  and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Conspiracy  to  defraud  the  queen  by  fraudulently  removing  goods  subject 
to  duties. {c) 

That  the  defendants  wickedly,  &c.,  intending  to  cheat  and  defraud 
the  queen,  heretofore,  to  wit,  on,  &c.,  at,  &c.,  "did  unlawfully  and 
fraudulently  cont^pire,  combine,  confederate  and  agree  together  and 
with  divers  other  persons,"  &c.,  "  to  cause  and  procure  certain  goods, 
wares  and  merchandises,  which  had  been  and  were  heretofore  im- 
ported and  brought  into  the  port  of  London  from  parts  beyond  the 
seas,  and  in  respect  whereof  certain  duties  and  customs  were  then  and 
there  due  and  payahle  to  our  said  lady  the  queen,  to  be  taken  and 
carried  away  from  the  said  port,  and  to  be  delivered  to  the  respective 
owners  thereof  without  payment  to  our  said  lady  the  queen  of  a  great 
part  of  the  duties  of  customs  so  then  and  there  due  and  payable  there- 
on as  aforesaid,  with  intent  thereby  then  and  there  to  defraud  our 
said  kidy  the  queen  in  her  said  revenue  of  the  customs  ;  in  contempt," 
&c. 

(h)  The  italicised  passajjcs  were  held  by  the  eourt  to  be  surplusajje. 

(c)  R.  V.  Blake,  G  A.  &  E.  N.  S.  126.  Tlic  second  count  charged  the  defendants  with 
conspiring-  "by  false  and  fraudgicnt  representations  and  statements  of  and  concerning  the 
numbers,  measures,  weights  and  values  respectively,  of  certain  foreign  goods,  \Vares  and 
merchandises,  which  had  been  and  were  theretofore  importid  and  brought  into  the  said 
j)ort  of  London  from  [)arts  hcyond  the  seas,  and  in  respect  whereof  certain  duties  of  cus- 
toms were  then  and  there  due  and  payahle  to  our  said  lady  the  queen,  according  to  the 
numbers,  measures,-  weiglits  and  values  res|)eeliv(:ly,  of  the  said  foreign  goods,  wares  and 
merchandises  respectively,  to  deprive  and  defraud  our  said  lady  the  queen  of  a  great  part 
of  the  said  duties  of  customs  so  due  as  aforesaid,  in  contempt,"  &,c. 

The  third  count  charged  the  defendants  with  having  conspired  "  by  fraudulently  and 
unlawfully  omitting  and  neglecting  to  make  and  give  a  true,  full  and  correct  declaration  and 
description  of  the  ))articulars  of  the  numbers,  measures,  weights  and  values  respectively, 
of  certain  fi)ri'ign  goods,  wares  and  merchandises  respectively,  which  had  been  and  were 
therctof()re  imported  *  and  brought  into  the  said  port  of  fiondon  fiom  parts  beyond  the 
Hcas,  and  in  respect  whereof  certain  duties  of  customs  were  then  and  tiiere  due  and  pay- 
able to  our  said  lady  the  queen,  according  to  the  nund)ers,  measures,  weights  and  values 
respectively,  of  the  said  foreign  goods,"  (fcc.,  "  rcs|)ectively  to  deprive  and  defraud  our  said 
lady  the  ipieen  of  a  great  part  of  the  said  duties  of  customs  so  due  as  aforesaid,  in  con- 
tempt," iV-C. 

The  lourth  count  described  the  conspiracy  to  be  "  to  cheat  and  defraud  our  said  lady  tlie 


CONSriRACY.  371 

Conspiracy  to  cast  au-aij  a  vessel  willi  intent  to  (h'frand  the  nnrJencr iters 
at  common  laa:    First  count,  conspiracy  to  cast  array,  ^^c.[(l) 

That  A.  B.,  late  of,  &c.,  yeoman,  C.  D.,  late  of,  &.C.,  yeoman,  E.  F,, 
late  of,  &c.,  yeoman,  and  G.  H.,  late  of,  &c.,  yeoman,  with  other  evil 
disposed  persons  to  the  inquest  aforesaid  unknown,  on,  &c.,  at,  &c., 
with  force  and  arms,  etc.,  unlawfully,  wickedly,  designedly,  falsely 
and  fraudulently  did  conspire,  combine,  confederate  and  agree  to- 
gether to  cast  away,  burn  or  destroy  on  the  high  seas  and  to  cause 
and  procure  to  be  cast  away,  burnt  and  destroyed  on  the  high  seas,  a 
certain  sloop  or  vessel  called  the  Norfolk,  whereof  one  J.  R.  was  then 
and  there  master,  with  an  intent  then  and  there  to  defraud  the  Dela- 
ware Insurance  Company  of  Philadelphia,  [naming  the  other  com- 
panies), to  the  evil  example,  &c.,  and  against.,  &c,  {Conclude  as  in 
book  1,  chap.  3). 

Second  count.  Conspiracy  to  defraud  the  underwriters,  and  as  overt 
acts  in  pursuance  thereof ,  loading  a  vessel  with  a  sham  cargo,  exhibitivg 
her  to  the  underwriters  and  fraudulently  representing  to  them  that  the 
vessel  contained  specie,  S^-c. 

That  the  said  A.  B.,  &c.,  with  other  evil  disposed  persons  to  the 
inquest  aforesaid  unknown,  afterwards,  to  wit,  on  the  same  day  and 
year  aforesaid,  at  the  county  aforesaid,  and  within  the  jurisdiction  of 


queen  of  divers  larg'e  sums  of  money  then  beinj^  due  and  payable  to  our  said  lady  the  queen 
in  respect  of  the  duties  of  customs  of  this  reahii,  in  contempt,"  tS^-c. 

Lord  Dcmnan  C  J. :  "  I  do  not  fee!  the  smallest  doubt  that  this  indictment  is  g-ood. 
The  charg-e  is  for  conspiracy  to  procure  imported  g-oods  in  respect  of  which  duties  are 
payable,  to  be  delivered  to  the  owners  without  payment.  That  is  the  substance  of  the  first 
count;  the  fourth  count  is  in  ctFuct  the  same,  and  may  perhaps  be  liable  to  tiie  same  ob- 
jection. I  cannot  think  it  necessary  to  specify  the  goods.  It  was  a  matter  of  evidence 
what  the  goods  were  to  which  the  conspiracy  relSled.  The  paities  might  have  conspired 
without  knowing  what  they  were;  they  might  have  laid  their  heads  together  to  cheat  the 
(]ueen  of  whatever  customable  goods  they  could  pass.  The  case  is  not  like  that  cited,  of 
soliciting  a  custom  house  otficer  to  neglect  his  duty.  There  it  was  necessary  to  show  that 
the  party  solicited  was  such  an  officer,  that  the  duty  was  incumbent  on  him." 

Patteson  J.:  "The  ^rst  count  shovi's  the  offence  which  is  cliarged  as  clearly  as  can  be 
done  in  a  case  of  tliis  kind.  As  to  a  future  plea  of  autrefids  coinnct  or  autrefois  acquit,  the 
identity  of  the  offence  must  be  the  matter  of  evidence,  in  ninety -nine  cases  out  of  a  hon- 
dred  in  the  cases  of  charges  of  conspiracy. 

"  We  know  that  a  general  count  for  a  conspiracy  to  bring  the  house  of  commons  into 
contempt  would  be  good,  though  the  means  were  not  set  forth ;  and,  in  such  a  case,  the 
identity  of  tlie  offence  if  the  party  were  indicted  again,  must  be  made  matter  of  evidence." 

Wightman  J.,  Coleredge  J.  being  absent:  "  I  am  of  the  same  opinion.  In  Rox  v.  Gill,  2 
B.  &  Al.  204,  the  defendants  wore  charged  with  cons|)iring  by  divers  false  pretences  and 
subtle  means  and  devices  to  oHtain  from  A.  and  B.  divers  large  sums  of  money  and  to  cheat 
and  defraud  them  thereof',  and  it  washeld  that  the  gist  of  the  offence  being  the  conspiracy, 
it  was  sufficient  only  to  state  the  act  and  its  object,  and  not  necessary  to  set  out  the  specific 
means.  i\Ir.  Cockburn's  object'mn  would  apply  to  almost  every  case  of  conspiracy  to  de- 
fraud a  party  of  goods.  It  is  true  that  there  might  arise  some  ditficulty  on  a  plea  of  autre, 
fois  acquit  or  autrefois  convict,  from  the'want  of  particularity  in  tlie  indictment.  That,  in 
most  cases,  nmst  be  supplied  by  p.irol  evidence;  it  is  very  seldom  that  enough  appears  on 
the  face  of  an  indictment  to  enal)le  a  defendant  to  dispense  with  such  proof" 

"Rule  for  arresting  judgment  refused." 

(rf)  Com.  ».  Hollingsworth,  Supreme  Court,  Pennsylvania,  November  Teriu,  1821,  No. 
30.  This  indictment  was  framed  by  eminent  counsel,  and  contained,  beside  the  counts  in 
the  text,  several  others  charging  conspiracies  to  defraud  di-tiiict  insurance  companies. 
The  defendants  were  convicted  at  a  tiisi  prius  held  by  Tilghmaa  C.  J.,  and  a  motion  in 
arrest  of  judi^meut  was  overruled  by  the  court  in  banc. 


372  OFFENCES  AGAINST  SOCIETY. 

this  court,  with  force  and  arms,  &c.,iinlawriiliy,  wickedly,  designedly, 
falsely  and  fraudulently  did  conspire,  combine,  confederate  and  agree 
together  to  defraud  the  Delaware  Insurance  Company  of  Philadelphia, 
(naming  all  the  other  companies).  And  the  jurors  aforesaid,  upon 
their  oaths  and  affirmations  aforesaid  do  further  present,  that  the  said 
A.  B.,  &c.,  with  other  evil  disposed  persons  to  the  inquest  aforesaid 
unknown,  in  pursuance  of  such  conspiracy,  combination,  confederacy 
and  agreement  as  aforesaid,  did  then  and  there  load  and  put  on  board 
and  cause  and  procure  to  be  then  and  there  loaded  and  put  on  board 
a  certain  sloop  or  vessel  called  the  Norfolk,  whereof  one  J.  R.  was 
then  and  there  master,  certain  boxes,  to  wit,  sixty-one  boxes  contain- 
ing pig-iron,  hay  and  rubbish  and  certain  kegs,  to  wit,  four  kege  con- 
taining lead  and  hay  ;  and  the  jurors  aforesaid,  upon  their  oaths  and 
aiiirmalions  aforesaid,  do  further  present,  that  the  said  A,  B.,  &c., 
with  other  evil  disposed  persons  to  the  inquest  aforesaid  unknown,  in 
further  pursuance  of  such  conspiracy,  combination,  confederacy  and 
agreement  as  aforesaid,  did  then  and  there  falsely  and  fraudulently 
exhibit  and  produce  and  cause  and  procure  to  be  then  and  there 
falsely  and  fraudulently  exhibited  and  produced  to  the  Delaware  In- 
surance Company  of  Philadelphia,  {najning  all  the  other  companies), 
false  and  fraudulent  invoices  and  bills  of  lading,  and  did  then  and  there 
falsely  and  fraudulently  pretend  and  represent  and  cause  and  procure 
it  to  be  then  and  there  falsely  and  fraudulently  pretended  and  repre- 
sented to  the  Delaware  Insurance  Company  of  Philadelphia  aforesaid, 
{nam,ing  all  the  other  companies),  that  the  said  boxes  then  and  there 
contained  true  and  genuine  goods,  wares  and  merchandise,  that  the 
said  kegs  then  and  tliere  contained  true  and  genuine  specie,  and  that 
the  said  sloop  or  vessel  called  the  Norfolk  was  then  and  there  bound 
and  intended  to  be  sent  and  to  depart  on  a  voyage  from  Philadel- 
phia to  New  Orleans,  to  the  evjl  example,  &c.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

Third  coiint.  Conspiracy  to  defraud  the  imderier iters  by  falsely  re- 
presentivg  to  them  that  a  vessel  loaded  n-ith  a  sham  cargo  was  loaded  with 
specie,  and  was  the  property  of  defendants. 

That  the  said  A.  B.,  &c.,  with  other  evil  disposed  persons  to  the 
said  inquest  unknown,  wickedly  devising  and  intending  fraudulently 
to  get  to  themselves  of  and  from  the  said  Delaware  Insurance  Com- 
pany of  Philadelphia,  {naming  all  the  other  companies),  large  sums 
of  money,  afterwards,  to  wit,  on  the  same  day  and  year  atbresaid,  at 
the  county  aforesaid,  and  within  the  jurisdiction  of  this  court,  with 
force  and  arms,  &,c.,  did  conspire,  combine,  confederate  and  agree  to- 
gether falsely  and  fraudulently  then  and  there  to  represent  and  cause 
and  procure  to  be  then  and  there  falsely  and  IVaudulently  represented 
to  the  Delaware  Insurance  Company  of  Philadelphia,  {naming  all 
the  other  companies),  that  they  the  said  A.  B.,  &c.,  were  then  and 
there  severally  the  owners  and  proprietors  of  certain  goods,  wares, 
merchandise  and  specie  of  great  value  and  amount,  that  they  the  said 
A.  B.,  ^Q..,  had  then  and  there  severally  shipped,  loaded  and  put  on 
board  a  certain  sloop  or  vessel  called  the  Norfolk,  whereof  one  J.  R. 
was  then  and  there  master,  the  said  goods,  wares  and  merchandise 
and  specie,  that  the  said  sloop  or  vessel  called  the  Norfolk  was  then 


CONSPIRACY.  373 

and  there  bound  and  intended  to  be  sent  and  to  depart  on  a  voyajre 
from  Philadelphia  to  New  Orleans,  and  that  they  the  said  A.  B.  tlieii 
and  there  severally  desired  to  have  and  ohtain  insurance  and  policies 
ot'  insurance  underwritten  upon  the  said  goods,  wares,  merchandises 
and  specie,  for  the  purpose  of  guarding  against  loss  or  damage  from 
or  by  reason  of  storms  or  other  casualties  on  the  voyage  aforesaid 
from  Pliiladelphia  to  New  Orleans;  whereas  in  truth  and  in  fact,  the 
said  A.  B.  et  al.,  had  then  and  there  loaded  and  put  on  board  and 
caused  and  procured  to  be  tlieu  and  there  loaded  and  put  on  board 
the  said  sloop  Nortblk,  certain  boxes,  to  wit,  sixty-one  boxes  contain- 
ing pig-iron,  hay  and  rubbish,  and  certain  kegs,  to  wit,  four  kegs  con- 
taining lead  and  hay,  with  an  intent  after  having  caused  and  procured 
policies  of  insurance  on  the  said  pretended  goods,  wares,  merchandise 
and  specie,  to  be  then  and  there  underwritten,  to  burn  and  destroy  the 
said  sloop  or  vessel  called  tlie  Norfolk  on  the  hish  seas,  to  the  evil 
example,  &c.,  and  against,  &c.     [Conclude  us  in  book  1,  chap.  .3). 

Fourth  count.  Co/ispiracij  to  procure  the  insurance  in  a  particu/ar 
company,  of  certain  boxes  of  hay  as  boxes  of  dry  goods,  and  then  after' 
wards  to  cause  the  vessel  to  be  burned ;  and  in  pursuance  of  the  conspi- 
racy, as  an  overt  act,  inducing  an  agent  (f  the  underwriters  to  negotiate 
for  them  an  insurance.. 

That  the  said  A.  B.  et  al.,  wiih  other  evil  disposed  persons  to  the 
inquest  aforesaid  unknown,  wickedly  devising  and  intending  to  get 
to  themselves  iVom  the  Delaware  Insurance  Company  of  Philadelphia, 
a  large  sum  of  money,  afterwards,  to  wit,  on  the  same  day  and  year 
aforesaid,  at  the  county  aforesaid  and  within  the  jurisdiction  of  tfiis 
court,  with  force-and  arms,  &c,,  did  conspire,  combine,  confederate 
and  agree  tbgether  to  cause  and  procure  a  policy  of  insurance  to  be 
then  and  there  underwritten  by  the  said  Delaware  Insurance  Com- 
pany of  Philadelphia,  in  the  sum  of  five  thousand  dollars,  on  certain 
boxes,  to  wit,  on  twenty^-tbur  boxes  containing  pig-iron  and  hay, 
under  colour  and  pretence  that  the  said  boxes  then  and  there  did  con- 
tain dry  goods  and  other  true  and  genuine  goods,  wares  and  mer- 
chandises, and  after  the  said  policy  of  insurance  should  be  then  and 
there  so  as  aforesaid  underwritten,  t^o  c;uise  and  procure  the  said 
boxes  to  be  burnt  and  destroyed  upon  the  high  seas,  with  intent 
frauduletUly  and  deceitfully  to  demand,  recover  and  receive  from  the 
said  Delaware  Insurance  Company  of  Philadelphia,  tlie  sum  under* 
written  by  them  on  the  policy  aforesaid.  And  in  pursuance  and 
prosecution  of  the  said  conspiracy,  combination,  confederacy  and 
agreement,  afterwards,  to  wit,  on  the  same  day  and  year  aforesaid, 
at  the  county  aforesaid  and  within  the  jurisdiction  of  this  court,  the 
said  E.  F.  falsely,  deceitfully,  designedly  and  fraudulently  did  pretend 
and  affirm  to  a  certain  N.  B.,  and  did  cause  and  procure  the  said  N. 
B.  then  and  there  untruly  to  pretend  and  affirm  to  tlie  said  Delaware 
Insurance  Company  of  Philadelphia,  that  he  the  said  E.  F.  had  then 
and  there  shipped  and  loaded  in  and  on  board  a  certain  sloop  or  ves- 
sel called  the  Norfolk,  whereof  one  J.  R.  was  then  and  there  master, 
certain  boxes  of  goods,  wares  and  merchandise,  to  wif,  six  boxes 
containing  shoes  and  boots,  eleven  boxes  containing  cloths  and  otljer 
dry  goods,  and  seven  boxes  containing  drugs  and  medicines,  altogether 
32 


374  OFFENCES  AGAINST  SOCIETF. 

of  great  value,  to  wit,  of  the  value  of  ten  thousatid  eiglit  hundred  and 
eight  dollars  and  one  cent,  and  did  then  and  there  cause  and  procure 
the  said  N.  B.  then  and  there  to  request  the  said  Delaware  Insurance 
Company  of  Philadelphia,  then  and  there  to  underwrite  a  policy  of 
insurance  in  the  siun  of  five  thousand  dollars  upon  the  said  pretended 
goods,  wares  and  merchandise  in  and  on  board  the  said  sloop  Nor- 
folk, from  Philadelphia  to  New  Orleans,  and  did  then  and  there  cause 
and  procure  the  said  N.  B.  then  and  there  to  produce  and  exliibit  to 
the  said  Delaware  Insurance  Company  of  Philadelphia,  a  certain 
false  and  pretended  invoice  of  the  said  pretended  goods,  wares  and 
merchandise  so  as  aforesaid  pretended  to  have  been  shipped  and 
loaded  in  and  upon  the  said  sloop  Norfolk,  and  did  then  and  there 
cause  and  procure  the  said  Delaware  Insurance  Company  of  Phila- 
delphia, then  and  there  to  underwrite  a  policy  of  insurance  in  the  sum 
of  five  thousand  dollars,  at  the  rate  of  t\Vo  per  centum  from  Philadel- 
phia to  New  Orleans,  upon  the  said  pretended  goods,  wares  and  mer- 
chandise, as  and  for  true  and  genuine  goods,  wares  and  merchandise, 
to  wit,  slioes  and  boots,  cloths  and  other  dry  goods,  and  drugs  and 
niedicines,  according  to  the  invoice  as  aforesaid,  and  as  being  of  the 
value  of  ten  thousand  eight  hundred  and  eight  dollars  and  one  cent ; 
whereas  in  truth  and  in  fact  the  boxes  which  the  said  E.  F.  so  as 
aforesaid,  and  in  pursuance  of  the  conspiracy  aforesaid,  caused  and 
procured  to  be  insured  as  containing  true  and  geimine  goods,  wares 
and  merchandise,  then  and  there  contained  only  pig-iron,  hay  and 
rubbish,  which  they  the  said  A.  B.,  &c.,  then  and  there  well  knew, 
to  tlie  great  deceit  and  damage  of  the  said  Delaware  Insurance  Com- 
pany of  Philadelphia,  to  the  evil  exam,ple,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3), 

Against  A.,  B^  C.  and  D.,  for  a  conspiracy  to  rise  upon  a  vessel  and 
carry  her  to  a  port  occupied  by  an  enemy,  ivith  an  overt  act;  and 
against  E.  for  comforting  and  abetting  them,  ^'C.{e) 

That  J.  B.,  otherwise  called  M.  M.,  R.  D.,  A.  D.,  A.  S.  and  C.  E., 

all  late  of,  &c.,  yeomen,  on,  &.C.,  at,  &c.,  unlawfully,  secretly  and 
wickedly  did  consult,  combine,  conspire  and  agree  together  that  they, 
each  of  them,  should  go,  enter  and  hire  tliemselves  on  board  a  certain 
sloop  or  vessel,  whereof  was  the  master  and  commander  of  the 

said  sloop  or  vessel,  then  lying  in  the  river  Delaware  near  the  shores 
of  this  commonwealth  and  belonging  to  souie  subject  or  subjects  of  this 
state  (to  the  jurors  aforesaid  unknown),  under  pretence  of  serving  as 
seamen  on  board  the  said  vessel  and  of  faithfully  navigating  the  same, 
according  to  the  directions  of  the  said  and  that  they,  afterwards, 

to  wit,  as  soon  as  the  said  vessel  sliould  come  and  arrive  on  the  open 
seas  and  main  ocean,  should  then  and  there  feloniously  and  piratically 
make  a  revolt  in  the  said  sloop  or  vessel  and  then  and  there  should 
rise  upon,  conquer  and  subdue  the  said  or  whoever  should  be 

master  thereof,  and  the  faithl'ul  mariners  on  board  the  said  vessel,  and 


(e)  Drawn  by  Mr.  Bradford  in  1789. 


COVSPIRACY. 


375 


then  and  there  should  take,  navigate  and  run  away  with  said  sloop 
or  vessel,  her  tackle,  apparel,  furniture  and  cargo  to  the  City  and  Port 
of  Nev/  York,  then  and  yet  being  in  the  possession  and  under  the 
power  of  the  king  of  Great  Britain,  the  open  enemy  of  this  state. 
And  the  inquest  aforesaid,  &c.,  do  further  present,  that  the  said  .1. 
B.,  otherwise  called  M.  M.,  &c.,  in  order  to  effectuate  such  their 
wicked  and  unlawful  conspiracy  aforesaid,  on  the  day  and  year  afore- 
said at  the  county  aforesaid,  did  go,  enter  and  hire  themselves  on 
board  the  said  sloop  or  vessel,  under  the  pretences  aforesaid  and  with 
the  intentions  and  designs  aforesaid,  contrary  to  the  form  of  the  act 
of  assembly  in  such  case  made  and  provided,  to  the  evil  example  of 
all  others  in  the  like  case  offending,  and  against,  &c.  {Conclude  as 
in  book  1,  chap.  3). 

That  S.  F.,  late  of,  &c.,  in  the  county  aforesaid,  widow,  not  being 
ignorant  of  the  premises  but  well  knowing  the  same,  on  the  day  and 
year  aforesaid  at  the  county  aforesaid,  the  said'  J.  B.,  otherwise  called, 
&c.,  unlawfully  and  wickedly  did  receive,  harbour  and  abet,  maintain 
and  comfort,  and  then  and  there  for  the  maintaining  and  comforting 
of  tiie  said  J.  B.,  otherwise  called,  &c.,  meat  and  drink  to  him  then 
and  there  did  give  and  deliver  and  cause  to  be  given  and  delivered, 
and  then  and  there  the  said  J.  B.,  otherwise  called,  &c.,  did  secrete, 
harbour  and  conceal,  with  intent  the  due  course  of  justice  in  this  be- 
half to  obstruct  and  prevent,  she  the  said  S.  F.  then  and  there  well 
knowing  the  said  J.,  Sic,  so  as  aforesaid  to  have  combined,  conspired 
and  agreed  with  the  malefactors  aforesaid,  &c. 

Conspiracy  to  disturb  a  party  in  the  possession  of  his  lands,  and  to  de- 
prive him  of  them.{f) 

That  J.  S.  C,  J.  R.  M.,  R.  S.  C,  and  divers  other  persons  to  the  jurors 
aforesaid  as  yet  unknown,  being  persons  of  evil  minds  and  dispositions, 
on,  &c.,  with  force  and  arms  at,  &c.,  unlawfully  and  wickedly  did  con- 
spire,combine, confederate  and  agree  together  unlawfully  and  unjustly 
to  disturb,  molest  and  disquiet  G.  J.  in  the  peaceable  and  quiet  pos- 
session, occupation  and  enjoyment  of  certain  manors,  messuages,  lands 
and  hereditaments  and  premises  situate  and  being  in  the  said  County 
of  J.,  of  which  he  the  said  G.  J.  then  was  and  for  a  long  time  had 
been  peaceably  and  quietly  possessed;  and  also  to  deprive  him  of 
certain  issues  and  profits  arising,  issuing  and  accruing  therefrom, 
and  of  the  rents,  issues  and  profits  of  certain  other  lands,  messuages 
and  premises  situate  and  being  in  the  said  county,  whereof  certain 
persons  then  were  in  peaceable  and  quiet  possession  as  tenants  of  the 
said  G.  J.  by  unlawful  means  and  devices.  And  the  jurors,  &c.,  that 
the  said  J.  S.  C.  in  pursuance  of  the  said  unlawful  and  vv^icked  con- 
spiracy, combination,  confederacy  and  agreement,  and  for  carrying 
the  same  into  effect,  did  afterwards,  to  wit,  on,  &c.,  with  force  and 
arms  at,  &c.,  break  and  enter  a  certain  messuage,  called  Stafford  cas- 
tle, situate  in  the  county  aforesaid,  whereof  the  said  G.  J.  had  long 
been  and  then  was  in  the  peaceable  and  quiet  possession.    And  the 

(/)  Dickinson's  Q.  S,  6th  ed.  355.    Found  at  Stafford  Summer  Assizes,  1823.    Removed 
into  K.  B.;  see  R.  v.  J.S.S.Cookc,  2  «.  &  C.  618;  5  ib.  53b ;  4  D.  &,  ii.  114;  7  ib.  673. 


376  OFFENCES  AGAUVST  SOCIETY. 

jurors,  &c.,  that  J.  S.  C.  on,  &c,,  at,  &c.,  did  falsely,  fraudulently  and 
wilfully  affirm  to  W.  H.  C.  and  divers  other  persons,  that  he  the  said 
J.  S.  C.  had  been  appointed  agent  to  the  said  R.  S.  C.  his  brother, 
by  the  house  of  peers;  whereas  in  truth,  he  had  not  been  appointed 
agent  to  the  said  R.  S.  C.  by  the  house  of  peers,  as  he  the  said  J.  S. 
C.  then  and  there  well  knew.  And  the  jurors,  &c.,  that  in  further  pur- 
suance, &c,,  said  J.  R,  M.  on,  &c.,  at,  &c.,  did  unlawfully  pretend  and 
assume  to  hold  a  court  leet  and  court  baron  of  the  manor  of  F.  in 
the  said  county,  as  the  steward  thereof  to  R.  S.  C,  whom  he  had  then 
and  there  represented  to  be  lord  of  the  said  manor,  the  said  G.  J. 
then  being  in  the  peaceable  occupation  of  the  said  manor  as  J.  R.  M. 
then  and  there  well  knew,  to  the  great  damage  of  Sir  G,  J.,  &.C.,  and 
contra  pacem. 

Second  count.     Exactly  similar,  ivithout  overt  acts. 

Third  count.      To  cut  down  timber  trees. 

That  defendants  and  ten  other  persons,  on,  &c.,  with  force  and  arms, 
at,  &.c,,did  conspire,  &c  to  cause  and  procure  a  large  number  of  timber 
trees  growing  and  being  in  certain  lands  situate  in  the  said  County  of 
S.,  and  then  and  long  before  in  the  peaceable  possession  of  certain  ten- 
ants of  the  said  G.  J.,  and  the  same  then  being  the  property  of  the  said 
G.  J.,  unlawfully  and  against  the  will  of  the  said.G.  J.  to  be  cut  down, 
felled  and  prostrated,  and  to  get  the  same  into  their  possession,  and 
convert  and  dispose  of  the  timber  thereof  to  their  own  use.  And  the 
jurors,  &c.,  that  J,  S.  Con,  &c.,  at,  &.C.,  did  obtain  and  procure  divers 
labourers  to  cut  down,  fell  and  prostrate  divers  of  the  said  trees,  and 
the  said  labourers  did  accordingly  then  and  there,  by  his  directions, 
with  force  and  arms,  unlawfully  and  violently  break  and  enter  divers, 
to  wit,  twenty  closes  wherein  the  said  trees  were  growing  and  being 
as  aforesaid,  and  unlawfully  cut  down,  fell  and  prostrate  divers,  to 
wit,  one  hundred  of  the  said  trees,  and  did  take  and  carry  away  the 
same,  to  the  great  damage,  &c. 

Fourth  count.     Exactly  the  same,  irithout  overt  acts. 

Fifth  count.      To  client  tenants  c/f'rknt,  try  a  false  claim  as  landlord. 

Did  conspire,  &c.,  itnlawfully  and  wickedly  to  cheat,  defraud  and 
impoverish  M.  R.,  W.  R.,  J.  D.  and  divers  other  persons,  who  then 
and  there  lawfully  held  and  enjoyed  divers  messuages,  lands  and 
tenements  situate  and  being  in  the  comity  aforesaid,  as  tenants  there- 
of to  the  said  G.  J.,  and  unlawfully  and  iVaudulentiy  to  obtain  from 
them  divers  large  sums  of  money,  by  causing  to  be  believed  by  the 
said  tenants,  that  the  said  R.  S.  C.  had  a  claim  of  title  to  the  said  mes- 
suage, lands  and  tenements,  which  was  admitted,  received  and  al- 
lowed by  the  said  G.  J.,  the  landlord  of  the  said  tenements,  to  be 
good  and  valid;  whereas  in  truth  and  in  fact,  they  tlie  said  (defend- 
ants then  and  there  well  knew  that  the  said  R.  S.  C.  had  not  a  claim 
of  title  to  the  said  messuages,  lands  and  tenements,  or  any  of  them, 
admitted,  received  or  allowed  by  the  said  G.  J.  to  be  good  and  valid). 
And  the  jurors,  (fee,  that  the  said  J.  S.  C.,  on,  &c.,  at,  &c.,  did  falsely, 
iVaudulentiy  and  wilfully  misrepresent  to  the  said  J.  D.,  then  being  a 
tenant  of  said  G.  J.  of  certain  of  the  said  messuages,  lands  and  tene- 
ments, and  then  owing  certain  rent  in  respect  of  the  same  ;  and  to  J.  R., 
the  sou  of  the  said  W.  R.,  who  then  held  certain  moneys  of  his  father 


CON'SPlRACy.  oil 

who  was  then  tenant  of  certain  of  the  said  messuages,  &c.,  of  the  said 
G.  J.,  and  then  and  tliere  owed  rent  for  the  same  ;  that  he  the  said  J.  S. 
C,  then  had  in  his  possession  a  letter  of  the  said  G.  J.,  recognizing 
the  jnstice  of  the  claim  of  the  said  R.  S.  C.  to  the  said  messuages,  &c. 
whereas  in  truth  and  in  fact,  the  said  J.  S.  C.  had  not  in  his  posses- 
sion  a  letter,  etc.,  {repeating  os  above),  as  he  the  said  J.  S.  C.  then 
well  knew,  and  thereby  he  the  said  J.  S.  C.  did  falsely  and  fraudu- 
lently then  and  there  receive  and  obtain  from  the  said  J.  D.,  a  large 
sum  of  money,  to  wit,  the  sum  of  pounds  of  his  moneys ;  and 

from  the  said  J.  R.,  a  large  sum  of  his  moneys,  to  wit,  the  sum  of 
ponndsof  the  moneys  of  hissaid  father  W,  R.  And  thejnrors,  &c.,  that 
the  said  J.  S.  C.  on,  &c.,  at,  &c.,  did  offer  to  JNI.  P.,  then  being  tenant  of 
the  said  G.  J.  of  certain  messuages,  &C-,  to  obtain  for  her  a  lease  of  the 
premises  of  which  she  was  then  so  tenant,  from  the  said  R.  S.  C. ;  and 
therenpon  he  the  said  J.  S.  C,  tlien  and  there  in  pursuance  of  the  said 
last  mentioned  conspiracy,  combination,  confederacy  and  agreement, 
falsely  and  fraudulently  asserted  to  the  said  M.  P.,  that  the  said  G.  J. 
had  given  up  all  title  to  the  estate  whereof  the  said  premises  con- 
veyed by  the  said  M.  P.  were  parcel ;  and  also,  that  he  the  said  J. 
S.  C.  had  a  letter  from  the  said  G.  J.,  to  prove  that  he  had  so  given 
up  title  to  the  said  estate  ;  whereas  in  truth  and  in  fact,  the  said  G.  J. 
had  not  given  up  all  title  to  the  said  estate,  as  he  the  said  J.  S.  C. 
well  knew;  and  whereas  in  truth  aud  in  fact,  the  said  J.  S.  C.  had 
not  a  letter  from  the  said  G.  J.,  to  prove  that  he  had  given  up  such 
title,  to  the  evLl  example,  &.c. 

Sixth  count.     Exactly  similar  to  fifth,  hut  without  overt  acts. 

Seventh  count.      To  molest  tenants  by  distresses,  ()f-c. 

Did  conspire,  &,c.,  by  unlawful  and  vexatious  distresses  and  threats 
of  the  power  of  (he  said  R.  S.  C,  under  the  title  of  Lord  S.,  to  molest, 
distin-b  and  disquiet  divers  persons,  who  then  and  there  lawfully  held 
and  enjoyed  divers  messuages,  lands,  &c.,  situate  in  the  said  county, 
as  tenants  thereof  to  the  said  G.  J.  (Overt  act  by  J.  S.  C,  that  he 
"did  unlawfully  and  fraudulently  issue  and  sign  as  agent  to  the  said 
R.  S.  C.  by  the  title  of  Lord  S.,  a  certain  warrant  of  distress  for  rent  on 
the  premises  occupied  by  one  P.  S.,  a  parcel  of  the  messuages,  &c., 
last  aforesaid,  as  tenant  thereof  to  the  said  G.  J.,  under  and  by  colour 
whereof  the  goods  of  the  said  P.  S.  oti  the  said  premises,  being  of 
great  value,  to  wit,  &c.,  were  afterwards,  to  wit,  on,  &c.,  at,  &c.,  taken 
and  seised  as  for  and  in  the  name  of  a  distress  for  rent  pretended  to 
be  due  to  the  said  R.  S.  C.  under  the  title  of  Lord  S.  for  the  said  pre- 
mises) ;"  to  the  evil  example,  &c. 

Eighth  count.     Exactly  similar,  without  overt  acts. 

Conspiracy  to  obtain  goods  upon  credit,  and  then  to  abscond  and  de- 
fraud the  vendor  thereof  [g) 

That  A.  B.,  C.  D.  and  E.  F.,  all  of,  &c.,  in  the  county  aforesaid, 

(g)  Com.  V.  Ward,  1  Mass.  R.  473.  In  the  text  the  overt  acts  may  be  omitted,  whirh 
were  treated  by  the  court  in  ttieir  judgment  a?  siiriilusnnre'.  See  antf,  p.  33S,  as  to  indict- 
ments for  conspiracy  to  commit  the  statutory  otTonce  ot'  secreting  goods,  &.c. 

32* 


378  OFFENCES  AGAJNSr  SOCIETY. 

traders,  wickedly  and  unjustly  devising  and  intending  one  G.  H.  to 
defraud  and  cheat  of  his  goods,  property  and  merchandises,  on,  &c., 
at,  &:c.,  did  falsely  and  Iraudulently  conspire,  combine,  confederate 
and  agree  among  themselves,  to  obtain  and  get  into  their  hands  and 
possession,  of  and  fronj  the  said  G.  H.,  his  goods,  property  and  mer- 
chandises upon  trust  and  credit,  and  then  to  abscond  out  of  the  said 
commonwealth,  and  defraud  him  thereof;  and  that  the  said  A.  B.,  C. 
D.  and  E.  F.,  in  pmsuance  of  and  according  to  the  conspiracy,  com- 
bination, confederacy  and  agreement  aforesaid,  so  as  aforesaid  had, 
did  then  and  there  falsely  and  fraudulently  obtain  and  get  into  their 
hands  and  possession,  of  and  from  the  said  G.  H.,  goods,,  wares  and 
merchandises  of  the  value  of  five  hundred  dollars,  upon  trust  and 
credit;  aiid  in  further  pursuance  of  the  conspiracy,  combination  and 
confederacy  aforesaid,  so  as  aforesaid  had  among  themselves,  they 
the  said  A.  B.,  C.  D.  and  E.  F.,  before  the  time  of  payment  for  the 
said  goods,  property  and  merchandises  had  arrived,  did  abscond  and 
go  out  of  the  said  conmionvvealth,  and  did  then  and  there  in  manner 
aforesaid,  cheat  and  defraud  the  said  G.  H.  of  his  goods,  property  and 
merchandise  aforesaid.     [Conclude  as  in  book  1,  chap.  3). 

Cnyispiracy  to  defraud  an  illiterate  'person,  Inj  falseh/  reading  to  kirn 
a  deed  of  bargain  and  sale,  as  and  for  a  bond  of  i'iidemnity.{li) 

That  A.  B.,  C.  D.  and  E.  F.,  all  of,  &c.,  in  the  county  aforesaid, 
yeomen,  unlawfully  devising  and  intending  one  G.  H.  to  injure,  de- 
ceive and  defraud,  and  him  the  said  G.  H.  fraudulently  to  deprive  of 
his  property  and  estate,  on,  &c.,  at,  &c.,  did  unlawfully  conspire, 
combine,  confederate  and  agree  among  themselves,  falsely  and  Iraudu- 
lently to  obtain  from  the  said  G.  H.  a  deed  of  bargain  and  sale  of  a 
certain  lot  of  land  in  said  town  of  B.,  called  lot  No.  20  in  said  town 
of  13.,  and  that,  in  pursuance  of  and  according  to  the  conspiracy, 
combination,  confederacy  and  agreement  aforesaid,  so  as  aforesaid 
had,  they  the  said  A.  B.,  C.  D.  and  E.  F.  did  falsely  and  fraudulently 
prepare,  make  out  and  fabricate  a  deed  of  bargain  and  sale  of  the 
said  lot  of  land,  to  be  signed  and  executed  by  him  the  said  G.  H.,  and 
did  then  and  there  falsely  and  fraudulently  present  the  same  to  him 
the  said  G.  H.,  and  did  then  and  there  lalsely  avid  fraudulenlly,  and 
in  pursuance  of  the  conspiracy,  combination,  contederacy  and  agree- 
ment aforesaid,  read  the  same  to  him  the  said  G'.  H.  as  a  bond  and 
obligation  for  the  sum  ofseventy  dollars,  to  be  given  by  him  the  said 
G.  H.  to  one  I.  J.  as  a  consideration  that  he  the  said  G.  H.  should 
indi'innify  the  said  I.  J.  against  the  payment  of  certain  notes  of  hand 
which  he  the  said  G.  II.  liad  before  the  day  aforesaid,  made  and  given 
to  one  K.  L. ;  he  the  said  G.  H.  IxMiig  then  and  there  an  illiterate 
person,  and  by  reason  thereof  wholly  imable  to  read  the  deed,  so  as 
aforesaid  falsely  and  fraudulently  made  out  and  presented  to  him,  &c. 

{h)  "Tliia  preccdfint  (says  Mr.  D.ivis-,  Tree.  p.  1('.3),  cont.iiiis  tlic  sulistanre  ofiui  indict- 
ment lri(jd  in  tlic  Siiprctnc  Court  of  Miissiicliusclls  for  the  (\)unly  of  lunnclcc.  Ttie 
ot\g\iv<\\  indictment  slated  the  manner  in  vviiieh  thi.s  fraud  was  carried  into  efl'ect;  i)ut  it 
18  not  rctuincd  in  this  precedent,  it  being'  unnecessary."  A  similar  altcinpt  at  an  early 
period  was  lield  iiidiclable ;  R.  v.  Sliirrctl,  1  Sid,  312,. 


coNsriRAcv.  379 

Conspiracy  io  'procure  the  elopement  of  a  minor  daughter  from  her  father. 
First  count,  charging  the  conspiracy  with  an  overt  act  amrring  that 
in  furtherance  of  the  conspiracy  the  defendants  aided  the  said  minor 
to  elope.{i) 

That  at  the  time  of  the  commission  of  the  several  grievances  here- 
inafter mentioned,  and  for  a  long  time  before,  at  said  county,  one  J. 
M.  N.,  a  daughter  of  D.  N.  and  M.  his  wife,  of  said  comity,  was  a 

(t)  Com.  V.  Mifflin,  5  W.  &  S.  461.  This  indictment  was  sustained  on  error  by  the 
Supreme  Court. 

The  following  reasons  for  a  new  trial  and  in  arrest  of  judgment  were  assigned,  which 
were  overruled  by  the  court  below,  and  were  assigned  for  error: 

1st.  That  the  matters  charged  in  the  bill  of  indictment  are  not  indictable. 

2d.  TJiat  the  matters  charged  were  not  sufficiently  staled  in  the  bill  of  indictment,  inas- 
much as  it  contains  no  specification  of  the  means  or  overt  acts  by  which  tiie  purpose  was 
to  be  effected. 

3d.  The  purpose  to  be  effected,  as  laid  in  the  bill,  was  neither  criminal  or  unlawful. 

4th.  That  the  object  of  the  conspiracy,  as  charged,  was  not  criminal. 

5th.  That  the  conspiracy  is  alleged  to  have  been  by  the  defendants  and  others  to  the, 
jury  unknown,  and  tiie  overt  acts  to  have  been  by  the  defendants  alone,  in  pursuance  of  a 
diti'ereiit  conspiracy,  to  wit,  of  a  conspiracy  by  the  said  defendants  alone,  without  others 
to  the  jury  unknown. 

Gibson  C.  J.,  after  examining  the  character  of  the  offence,  said :  "  In  Rex  v.  Pywell  (1 
Stark.  Rep.  402),  a  confederacy  to  cheat  in  the  sale  of  a  horse,  was  held  to  be  itmocent, 
Md  in  the  State  v.  Dickey  (4  Halst.  293),  it  was  held  that  a  civil  injury,  which  is  not 
indictable  when  committed  by  an  individual,  does  not  contract  the  quality  of  guilt  by  being 
the  act  of  a  confederacy.  But  the  contrary  was  held  in  the  Stale  v.  Buchanan  (5  Har.  & 
J.  317),  and  in  the  King  v.  Stratton  (I  C^mpb.  549);  a  confederacy  to  deprive  the  secre- 
tary of  a  trading  company  of  his  office,  was  held  not  to  be  indictable  only  because  the 
company  was  illegal.  These  discrepancies  show  the  want  of  test  for  doubtful  cases;  but 
these  are  cases  of  such  transcendental  wrong  and  outrage,  as  leave  no  doubt  of  their  cha- 
racter;  and  a  confederacy  to  steal  a  daughter  is  not  the  least  of  them.  It  is  a  denial  or 
contempt  of  the  father's  right  to  counsel  and  advise;  and  it  is  only  less  atrocious  than  the 
conspiracy  in  the  King  e.  Grey  (3  St.  Tr.  519),  and  that  in  the  Kinge.  Delavcl  (3  Burr.  1437), 
to  ruin  a  virgin  by  enticing  her  to  desert  her  father's  protection,  and  live  in  a  state  of  con- 
cubinage. A  marriage  at  twelve,  wiiicli  is  valid  for  the  sake  of  the  issue,  would  be  scar/Cc 
less  brutal  or  offensive  to  the  feelings  of  the  family;  and  why,  but  to  protect  the  feelings 
of  relatives,  was  a  combination  to^take  up  dead  bodies,  for  scientific  purposes,  which  is 
not  essentially  immoral,  held  to  be  indictable  in  Rex  ».  Lynn?  (2  T.  R.  7"-23).  But  if  it 
would  be  indictable  to  procure  the  eloppment  of  a  girl  who  had  just  attained  the  age  of 
consent,  at  what  other  age  within  the  jieriod  of  infancy  would  such  an  act  be  innocent ; 
and  how  would  the  law  discrLininate  ?  It  is  true  tliat  Air.  Justice  Bulley  was  of  opinion, 
in  Rex  v.  Fowler  (2  East's  P.  C.  c.  11,  s.  II),  that  as  tfie  act  of  marriage  is  lawful  in 
itself,  a  combination  to  procure  it  can  become  criminal  only  by  the  use  of  undue  means; 
but  the  parties,  in  that  "Case,  were  sui  juris,  and  he  left  the  question,  what  is  undue  means, 
an  open  one.  If  the  subject  of  the  present  indictment  is  no  more  than  a  private  wrong, 
it  must  pass  entirely  without  rebuke;  for  it. would  be  easier  to  find  a  precedent  for  a 
criminal  corrective  of  it,  than  i  civil  one.  But  even  a  private  injury,  such  as  hissing  an 
actor,  or  impoverishing  a  man,  becomes  a  public  wrong  when  done  in  concert;  and  this 
was  certainly  so.  .   - 

"  Even  had.  the  precedents  not  reached  the  case  before  us,  there  would  he  no  reason  why 
the  law  of  conspiracy  should  stop  shoit  of  it  now,  considering  the  smalhiess  of  the  point 
from  which  it  started,  and  the  decree  of  its  subsequent  expansion.  In  Ld.  Coke's  d.-iy  it 
was  limited  to  '^a  consultation  and  agreement  between  two  or  more,  to  appeal  or  indii.t  a 
persort  fiilsely  and  maliciously;'  3  Inst.,  143;  since  when,  it  has  spread  itself  over  the 
whole  surface  of  mischievous  combination.  I  am  not  one  of  those  who  fear  that  the  cata- 
logue of  crimes  will  be  unduly  enlarged  by  its  progress,  seeing,  as  I  do,  that  it  is  never 
invoked  except  as  a  corrective  of  disorder  wliich  would  else  be  without  one,  and  as  a  curb 
to  the  iiumoderalc  power  to  do  mischief  which  is  g-ained  by  a  combination  of  the  means. 
It  is  true,  tiiat  there  is  no  recent  [irecident  of  an  indictment  like  the  present;  but  had  not 
the  3  Hen.  VII.  c.  2,  and  tire  39  Eliz.  c.  9,  provided  a  more  energetic  remedy  foi  the 
ofFonce,  coin;n,on  law  precedents  of  indictments  for  it  would  have  abounded.  But  weie 
we  Without  even  liie  semlil.ince  of  a.  precedent,  we  could  not  hesitate  to  pioaounce  tljc  act 
of  which  tlie  defendants  have  been  cojiviclud,  a  comijion  law  offence." 


380  OFFEXCES  AGAINST  SOCIETY. 

minor,  under  the  age  of  twenty-one  years,  and  was  dwelling  and  re- 
siding in  the  fomily  of  her  said  father,  and  under  his  paternal  care, 
guardianship,  protection,  instruction,  control,  authority  and  employ- 
ment. And  the  said  jurors,  on  their  said  oaths  and  affirmations,  do 
further  present,  that  J.  M.,  late  of  said  county,  yeoman,  R.  C.  H.,  late 
of  said  county,  physician,  and  D.  H.  C,  late  of  said  county,  yeoman, 
heing  persons  of  evil  minds  and  dispositions,  together  with  divers 
other  evil  disposed  persons,  to  the  jurors  aforesaid  unknown,  on,  &c., 
at,  &.C.,  with  force  and  arms,  &,c.,  unlawfully,  wickedly,  falsely,  ma- 
liciously and  injuriously  did  conspire,  combine,  confederate  and  agree 
together  to  cause,  effect,  produce  and  procure  the  elopement  and 
escape  of  the  said  J.  M.  N.  from  the  house,  family,  guardianship,  pro- 
tection, control,  care,  authority  and  employment  of  her  said  father, 
the  said  D.  N.,  without  the  consent  of  her  said  father  and  against 
his  will ;  and  in  pursuance  and  furtherance,  and  according  to  the 
said  conspiracy,  combination,  confederacy  and  agreement  between 
them,  the  said  J.  M.,  R.  C.  H.  and  D.  H.  C.  as  aforesaid  had,  did  on 
the  night  between  the  tenth  and  eleventh  days  of  June,  in  the  year 
aforesaid,  at  said  county,  entice,  persuade,  cause,  procure  and  assi>l 
the  said  J.  M.  N.  to  elope,  escape  and  depart  from  her  said  father's, 
the  said  D.  N.'s  house,  family, care,  guardianship, protection,  authority, 
control  and  employment,  secretly,  covertly  and  without  his  leav*?!, 
consent  or  approbation  and  against  his  will,  the  said  J.  then  and 
there  still  being  a  minor,  under  the  age  of  twenty-one  years;  to  the 
great  damage  of  the  said  D.  N.,  and  of  his  said  minor  daughter,  to 
the  evil  example,  &c.,  and  against,  &,c.  {Conclude  as  in  book  1, 
chap.  3). 

Second  count.  Conspiracy  to  procure  the  elopement  of  the  said  minor 
vith  intent  to  marry  her  to  one  C.  K.,  and  overt  act  charging  the  elope- 
ment, SfC. 

That  the  said  J.  M.,  R.  C.  M.  and  D.  H.  C,  together  with  divers 
persons  to  the  jurors  aforesaid  unknown,  being  persons  of  evil  minds 
and  dispositions,  afterwards,  to  wit,  on,  &c.,  at,  (tc,  with  force  and 
arms,  &c.,  unlawfully,  wickedly,,  deceitfully,  maliciously  and  inju- 
riously did  conspire,  combine,  confederate  and  agree  together  to  cause, 
induce,  persuade  and  procure  the  said  J.  M.  N.,  .the  said  J.  then  and 
there  being  a  minor  under  the  age  of  twenty-one  years,  and  dwelling 
and  residing  in  the  house  and  family  of  her  father,  D.  N.,  and  under 
his  paternal  care,  guardianship,  protection,  control  and  authority,  to 
escape,  elope  and  depart  from  her  said  father's  house,  family,  care, 
guardianship,  protection  and  control,  without  her  said  father's  con- 
sent and  against  his  will,  with  the  view,  purpose  and  intent  that  she, 
the  said  J.  M.  N.  might  be  joined  in  marriage  with  one  C.  K.,  with- 
out the  consent  and  approbation  and  against  the  wish  and  will  of  the 
said  D.  N.,  and  in  violation  of  his  lawful  and  parental  rights  and  au- 
thority. And  the  jurors  aforesaid,  on  tlunr  oaths  and  aliirniations  afore- 
said, do  further  present,  that  the  said  .[.  M.,  R.  C.  II.  and  [).  II.  C,  with 
the  said  other  persons  unknown,  in  [)ursuancc  and  furtherance  of  and 
according  to  the  said  conspiracy,  combination,  confederacy  and  agree- 
ment, between  them  the  said  .[.,  R.  and  I),  as  aforesaid  had,  did  on 
the  night  between  the  t<titli  nnd  I'Icvcnth  days  of  June,  in'  the  year 
aforesaid,  and  about  ilic  hour  (4'  one  o'clock,  at  Shippcnsbury,  in  said 


COIfSPlRACY.  381 

county,  aiul  Avithin  tlie  jurisdiction  of  this  court,  wickedly,  falsely, 
maliciously,  unlawfully  and  injuriously  entice,  persuade,  cause,  pro- 
cure, aid  and  assist  the  said  J.  JNl.  N.  to  elope,  escape  and  depart  from 
her  said  father's  house,  family,  care,guardianshi[),  protection,  control 
and  authority,  in  the  company  and  along  with  the  said  C.  K.,  and 
secretly  and  without  the  knowledge,  approbation  and  consent  and 
against  the  will  of  the  said  D.  N.,  with  the  view,  purpose  and  intent 
that  she  the  said  J.  M.  N.  should  be  joined  in  marriage  with  the  said 
C.  K.,  without  the  consent  and  against  the  will  of  her  said  father;  and 
with  the  same  intent  and  purpose,  and  in  furtherance  and  according 
to  tlie  said  conspiracy,  combination,  coniederacy  and  agreement,  tlie 
said  J.  M.,  R.  C.  II.  and  D.  H.  C.  and  other  persons  unknown,  then 
and  there  did  aid,  assist,  abet  and  co-operate  with  the  said  J.  iM.  N. 
and  C.  K.,  secretly  and  covertly  to  carry  away  and  remove  a  large 
quantity  of  clothing,  goods  and  chattels  of  the  said  D.,  and  to  place 
the  said  J.  M.  N.  and  the  said  goods,  chattels  and  clothing  within 
and  upon  a  certain  railroad  car  then  and  there  passing,  so  that  the 
said  J.  might  be  swiftly  and  secretly  conveyed  and  carried  away  and 
transported  beyond  the  pursuit  and  .protection  of  her  said  father,  with 
the  intent,  view  and  purpose  aforesaid,  to  the  great  damage  of  the 
said  D.  N.,  to  the  evil  example,  &c.,  and  against,  &:c.  {^Conclude  us 
in  book  1,  chap.  3). 

Cons-piracy  to  inveigle  a  daughter  from  the  custody  of  her  parents,  for 
the  purpose  of  marrying  her,  {iji  substance). {J) 

That  C.  S.  was  an  infant  of  thirteen  years  of  age  (her  father  P.  S. 
being  dead,  and  S,  her  mother  married  to  C.  G.),  and  under  the  guar- 
dianship of  M.  S.  and  A.  S.  both  as  to  person  and  estate,  and  that  the 
same  C.  was  entitled  to  a  large  property  under  her  father's  will,  to 
wit,  one  thousand  pounds,  and  resided  with  the  said  C.  and  S,  with 
tlie  consent  of  her  said  guardians,  and  that  the  said  M.  H.  et  al.,  well 
knowing  the  premises,  on,  &.C.,  did  conspire  together  to  deprive  the 
said  C.  and  S,  of  the  service  of  the  said  C.  and  to  seduce  her  from 
their  house,  and  to  inveigle  her  into  a  marriage  with  the  said  JM.  H., 
and  under  divers  false  pretences  did  seduce  and  inveigle  the  said  C. 
for  the  purposes  aforesaid,  against  the  will  of  the  said  C.  and  S.  and 
of  the  said  M.  and  A.,  and  in  pursuance  of  the  said  conspiracy  did 
ply  the  said  C.  with  wine  and  other  strong  liquors,  and  she  the  said  C. 
being  intoxicated,  did  procure  the  ceremony  of  marriage  to  be  recited 
between  the  said  M.  H.  and  C.  S.,  to  the  great  damage  and  disgrace  of 
the  said  C,  to  the  evil  example,  &c.,  and  against,  &:c.  {Conclude  as 
in  book  1,  chap.  3). 

For  a  conspiracy  to  incite  J.  JV.  to  lay  wagers,  ^-c;  overt  act,  actually 
cheating.{k) 

That  R.  S.,  late  of,  &c.,  yeoman,  together  with  a  certain  other  per- 

{j)  Rcsp.  ».  Hevice,  2  Yeates  114.     This  is  the  mere  skeleton  of  the  indictment  cm- 
plovfii  in  this  case.     I  liavc  been  unable  to  discover  tlie  record, 
(/c;  Diavvn  by  Mr.  liiaJloid. 


382 


OFFENCES  AGAINST  SOCIETY. 


son,  to  the  inquest  aforesaid  unknown,  being  persons  of  evil  name 
and  fame  and  not  caring  to  get  their  Hvehhood  by  honest  labour,  but 
by  fraud  and  covin  maintaining  their  idle  and  disorderly  course  of 
life  (on  the  year  and  day,  the  place  and  jurisdiction),  unlawfully  and 
wickedly  did  combine  and  conspire  and  agree  together,  to  cheat  and 
defraud  the  liege  citizens  of  this  commonwealth,  and  particularly  a 
certain  J.  N.  of  their  money,  goods  and  chattels,  by  art,  fraud,  practice 
and  deceit,  and  then  and  there  unlawfully  and  wickedly  did  combine, 
conspire  and  agree  together,  that  he  the  said  R.  S.  should  provoke 
and  incite  the  said  liege  subjects  of  this  commonwealth,  but  par- 
ticularly the  said  J".  N.  aforesaid,  to  bet  and  lay  wagers  with  the  said 
unknown  person,  with  an  intent  in  the  said  betting  and  wagering,  to 
deceive  and  impose  on  and  cheat  the  said  liege  subjects  of  this  com- 
monwealth, and  particularly  the  said  J.  N.,  and  them  the  said  liege 
citizens  of  this  commonwealth  and  particularly  J.  N.  aforesaid,  of 
money,  goods  and  chattels,  by  false  tricks  and  deceit  in  and  about  the 
betting  and  wagering  aforesaid,  deceive  and  defraud,  to  the  great 
damage  of  the  said  liege  subjects  of  this  commonwealth  and  par- 
ticularly to  the  said  J.  N.,  to  the  evil  example,  &c.,  and  against,  &c. 

And  that  the  said  R.  S.,  together  with  the  said  other  person  to- the 
inquest  aforesaid  unknown,  in  pursuance  of  such  their  conspiracy 
aforesaid,  afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at  the  city 
aforesaid  and  within  the  jurisdiction  aforesaid,  did  wickedly  and 
fraudulently  provoke  and  incite  the  said  J.  N.  to  lay  wagers  with  the 
unknown  person  aforesaid,  and  that  the  said  R.  S.  together  with  the 
person  to  the  inquest  aforesaid  unknown  as  aforesaid,  by  betting  and 
laying  wagers  with  the  said  J.  N.,  then  and  there  did  get  into  their 
possession,  unlawfully  and  wickedly,  the  sum  of  fifteen  shillings,  lawful 
money  of  Pennsylvania,  of  the  goods  and  chattels  of  the  said  J.  N., 
and  him  the  said  J.  N.  of  the  said  sum  of  fifteen  shillings  aforesaid, 
lawful  money  as  aforesaid,  by  false  acts  and  tricks  then  and  there  did 
deceive  and  defraud  and  cheat. 

And  so  the  inquest  aforesaid  on  their  oaths  and  affirmation  afore- 
said, do  say,  that  the  said  R.  S.,  together  with  the  said  other  person  to 
the  inquest  albresaid  unknown,  according  to  the  conspiracy,  com- 
bination and  agreement  aforesaid,  the  aforesaid  J,  N.  of  the  sum  of 
fifteen  shillings,  lawful  money  aforesaid,  in  manner  and  form  aforesaid 
fraudulently  and  wickedly  did  deceive,  cheat  and  defraud,  contrary, 
&c.,  to  the  great  damage,  &c,,  and  against,  &c.  [Conclude  as  in  hook 
1,  chap.  3).  ' 

Conspii'dcf/  at  common  htv\  amovg  workmen,  to  raise  their  wages  and 
lessen  the  timeoflulwur.ij.) 

That  A.  li.,  &c.,  {setting  o-iil  their  names  and  additions),  on,  &c., 
at,  &c.,  being  workmen  and  journeymen  in  the  art,  mystery  and  man- 


(/)  Starkif's  C.  r.  471. 

What  d('}rroo  of  p.irticularity  ia  rcquirrd  in  indictments  of  tliis  class,  is   examined    by 
Sliiiw  (;.  .1.  iti  Corn.  ?).  Hunt,  4  Mete.  lar). 

"  Tlic  firht  count,"  Jie  said,  "set  forlli  tiiat  the  defendants,  witli  divers  oti)ers  unknown, 


COXSPIRACY. 


883 


nal  occupation  of  a  wheelwright,  and  not  being  content  to  work  and 
labour  in  that  art  and  mystery  by  the  usual  nuniber  of  hours  in  each 

on  the  day  and  at  the  place  named,  being  workmr n  and  journeymen  in  the  art  and  occu- 
pation of  bootmakers,  unlawfully,  perniciously  and  deceittuUy  designing  and  intending  to 
continue,  keep  up,  form  and  unite  themselves  into  an  unlawful  club,  society  and  combina- 
tion, and  make  unlawful  by-laws,  rules  and  orders  among  themselves,  and  thereby  govern 
themselves  and  other  workmen  in  the  said  art,  and  unlawfully  and  unjustly  to  extort 
great  sums  of  money  by  means  thereof,  did  unlawfully  assemble  and  meet  together,  and 
being  so  assembled,  did  unjustly  and  corruptly  conspire,  combine,  confederate  and  agree 
together,  that  none  of  them  should  thereafter,  and  that  none  of  them  would  work  for  any 
master  or  person  whatsoever  in  the  said  art,  mystery  and  occupation,  who  should  employ 
any  workman  or  journeyman  or  other  person  in  the  said  art,  who  was  not  a  member  of 
said  club,  society  or  combination,  after  notice  given  to  him  to  discharge  such  workman 
from  the  employ  of  such  master;  to  the  great  damage  and  oppression,  &e. 

"  Now  it  is  to  be  considered  that  the  preamble  and  introductory  matter  in  the  indict- 
ment— such  as  unlawfully  and  deceitfully  designing  and  intending  unjustly  to  extort  great 
sums,  &c. — is  mere  recital,  and  not  traversable,  and  therefore  cannot  aid  an  imperfect 
averment  of  the  facts  constituting  the  description  of  the  offence.  The  same  may  be  said 
of  the  concluding  matter  which  follows  the  averment,  as  to  the  great  damage  and  oppres- 
sion, not  only  of  their  said  masters  employing  them  in  the  said  art  and  occupation,  but 
also  of  divers  other  workmen  in  the  same  art,  mystery  and  occu[)atlon,  to  the  evil  exam])le, 
&c.  If  the  facts  averred  constitute  the  crime,  they  are  properly  stated  as  the  legal  in- 
ferences to  be  drawn  from  them.  If  they  do  not  constitute  the  charge  of  such  an  offence, 
they  cannot  be  aided  by  these  alleged  consequences. 

"Stripped  then  of  these  introductory  recital  and  alleged  injurious  consequences,  and  of 
the  qualifying  epithets  attached  to  the  facts,  the  avermelit  is  this,  that  the  defendants  and 
others  formed  themselves  into  a  society,  and  agreed  not  to  work  for  any  person  who  should 
employ  any  journeyman  or  other  person,  not  a  member  of  such  society,  after  notice  given 
him  to  discharge  such  workman. 

"The  manifest  intent  of  the  association,  is  to  induce  all  those  engaged  in  the  same  oc- 
cupation to  become  members  of  it.  Such  a  purpose  is  not  unlawful.  It  would  give  them 
a  power  which  might  be  exerted  for  useful  and  honourable  purposes,  or  for  dangerous  and 
pernicious  ones.  If  the  latter  were  the  real  and  actual  object,  and  susceptible  of  proof,  it 
should  have  been  specially  charged.  Such  an  association  might  be  used  to  afford  each 
other  assistance  in  times  of  poverty,  sickness  and  distress;  or  to  raise  their  intellectual, 
moral  and  social  condition;  or  to  make  improvement  in  their  art;  or  for  other  purposes; 
or  the  association  might  be  designed  for  purposes  of  oppression  and  injustice.  But  in 
order  to  charge  all  those  vs'ho  become  members  of  an  association,  with  the  guilt  of  a  crimi- 
nal conspiracy,  it  must  be  averred  and  proved  that  the  actual,  if  not  the  avowed  object  of 
the  association,  was  criminal.  An  association  may  be  formed,  the  declared  objects  of 
which  are  irmocent  and  laudable,  and  yet  they  may  have  secret  articles,  or  an  agreement 
conmiunieated  only  to  the  members,  by  which  they  are  banded  together  for  purposes  in- 
jurious to  the  peace  of  society  or  the  rights  of  its  members.  Such  would  undoubtedly  be 
a  criminal  conspiracy  on  proof  of  the  fact,  however  meritorious  and  praiseworthy  the 
declared  objects  might  be.  The  law  is  not  to  be  hoodwinked  by  colourable  pretences.  It 
looks  at  trulli  and  reality,  through  whatever  disguise  it  may  assume.  But  to  make  such 
an  association,  ostensibly  innocent,  the  subject  of  prosecution  as  a  criminal  conspiracy, 
the  secret  agreement  which  makes  it  so,  is  to  be  averred  and  proved  as  the  gist  of  the  of- 
fence. But  when  an  association  is  formed  for  purposes  actually  innocent,  and  afterwards 
its  powers  are  abused  by  those  who  have  the  control  and  management  of  it,  to  purposes  of 
oppression  and  injustice,  it  will  be  criminal  in  those  who  thus  misuse  it,  or  give  consent 
thereto,  but  not  in  the  other  memhers  of  the  association.  In  this  case  no  such  secret 
agreement,  varying  the  objects  of  the  association  from  those  avowed,  is  set  forth  in  this 
count  of  the  indictment. 

"  Nor  can  we  perceive  that  the  objects  of  this  association,  whatever  they  may  have  been, 
were  to  be  attained  by  criminal  means.  The  means  which  the}'  propose  to  employ,  as 
averred  in  this  count,  and  which,  as  we  are  now  to  presume,  were  established  by  the 
proof,  were,  that  they  would  not  work  for  a  person,  who,  after  due  notice,  should  emjiloy 
a  journeyman  not  a  member  of  their  society.  Supposing  the  object  of  the  association  to 
be  laudable  and  lawful,  or  at  least  not  unlawful,  are  these  means  criminal?  The  case  sup- 
poses that  these  persons  are  not  bound  by  contract,  but  free  to  work  for  whom  they  please, 
or  not  to  work  if  they  so  prefer.  In  this  state  of  tilings,  we  cannot  perceive  that  it  is 
criminal  for  men  to  agree  together  to  exercise  their  own  acknowledged  rights,  in  such  a 
manner  as  best  to  subserve  their  own  interests.     One  way  to  lest  this  is,  to  consider  the 


384  OFFENCES  AGAINST  SOCIETY. 

day,  and  at  the  usual  rates  and  prices  for  which  they  and  other 
workmen  and  journeymen  were  wont  and  accustomed  to  work,  but 

effect  of  such  an  agreement,  where  the  object  of  the  association  is  acknowlcdg-cd  on  all 
hands  to  be  a  laudable  one.  Suppose  a  class  of  workmen,  impressed  with  the  manifold 
evils  of  intemperance,  should  agree  with  each  other  not  to  work  in  a  shop  in  which  ardent 
spirit  was  furnished,  or  not  to  work  in  a  shop  with  any  one  who  used  it,  or  not  to  work 
i'oT  an  employer  who  should,  after  notice,  employ  a  jouineyman  who  habitually  used  it: 
TJie  consequences  might  be  the  same.  A  workman  who  should  still  persist  in  the  use  of 
ardent  spirit,  would  find  it  more  difficult  to  get  employment;  a  master  employing  such  an 
one  might,  at  times,  experience  inconvenience  in  his  work,  in  losing  the  services  of  a 
skilful  but  intemperate  workman.  Still  it  seems  to  us,  that  as  the  object  would  be  lawful, 
and  the  means  not  unlawful,  sucii  an  agreement  could  not  be  called  a  criminal  conspiracy. 

"  From  this  count  in  the  indictment,  we  do  not  understand  that  the  agreement  was,  thut 
the  defendants  would  refuse  to  work  for  an  employer  to  whom  they  were  bound  by  con- 
tract for  a  certain  time,  in  violation  of  that  contract:  nor  that  they  would  insist  that  an 
employer  should  discharge  a  workman  engaged  by  contract  for  a  certain  time,  in  violation 
of  such  contract.  It  is  perfectly  consistent  with  every  thing  stated  in  this  count,  that  the 
effect  of  the  agreement  was,  that  wiien  they  were  free  to  act,  they  would  not  engage  with 
an  employer,  or  continue  in  his  employment,  if  such  employer  when  free  to  act,  should 
engage  with  a  workman,  or  continue  a  workman  in  his  employment,  not  a  member  of  the 
association.  If  a  large  number  of  men,  engaged  for  a  certain  time,  should  combine  to- 
gether to  violate  (heir  contract,  and  quit  their  employment  together,  it  would  present  a  very 
different  question.  Su[)pose  a  farmer  employing  a  large  number  of  men  engaged  for  tiie 
year  at  a  fair  monthly  wages,  and  suiiposc  that  just  at  the  riioment  that  his  crops  were 
ready  to  harvest,  they  should  all  combine  to  quit  his  service,  unless  he  would  advance  their 
wages,  at  a  time  when  oilier  labourers  could  not  be  obtained  :  it  would  surely  be  a  con- 
spiracy to  do  an  unlawful  act,  thougli  of  such  a  charactei-,  that  if  done  by  an  individunl, 
it  would  lay  the  foundalion  of  a  civil  action  only,  and  not  of  a  criminal  prosecution.  It 
would  be  a  case  very  different  from  that  stated  in  this  count. 

"  The  second  count,  omitting  the  recital  of  unlawful  intent  and  evil  dispositions,  and 
omitting  the  direct  averment  of  an  unlawful  club  or  society,  alleges  that  the  defendants, 
with  others  unknown,  did  assemble,  conspire,  confederate  and  agree  together,  not  to  work 
for  any  master  or  person  who  sliould  employ  any  workman  not  being  a  member  of  a  cer- 
tain club,  society  or  combination,  called  the  Boston  Journeymen  J5ootm:iker's  Society,  or 
who  should  break  any  of  their  by-laws,  unless  such  workmen  should  p;iy  to  said  club,  such 
sum  as  should  be  agreed  upon  as  a  penalty  for  the  breach  of  such  unhiwl'ul  rules,  &,c.,  and 
that  bj'  means  of  said  conspiracy  they  did  compel  one  J.  B.  VV.,  a  master  eordwainer,  to 
turn  out  of  his  employ  one  1'.  11.,  a  journeyman  bootmaker,  &c.,  in  evil  example,  &c.  So 
far  as  the  averment  of  a  conspiracy  is  concerned,  ail  the  remarks  made  in  reference  to  the 
first  count  are  equally  applicable  to  this.  It  is  simply  on  avcrmfcnt  of  an  agreement 
amongst  themselves  not  to  work  for  a  person,  who  should  employ  any  person  not  a  mein- 
ber  of  a  certain  association.  It  sets  forth  no  illegal  or  criminal  purpose  to  be  accomplished, 
nor  any  illegal  or  criminal  means  to  be  adopted  for  the  accomplishment  of  any  purpose. 
It  was  an  agreement,  as  to  the  manner  in  which  they  would  exercise  an  acknovvledged 
right  to  contract  with  others  for  their  labour.  It  does,  not  aver  a  cons]iiraey  or  even  an 
intention  to  raise  their  wages;  and  it  appears  by  the  bill  of  exceptions,  that  the  case  was 
put  U|)on  the  tbotingof  a  conspiracy  to  raise  their  wages.  Such  an  agreement,  as  set  forth 
in  tiiis  count,  would  be  perfectly  justifiable  under  the  recent  English  stutute,  by  which 
this  subject  is  regulated  ;  St.  6  Geo.  IV.  c.  129  ;  see  Roscoc's  Crim.  Ev.  {2d  Am.  ed.), 
36«,  .36!i. 

"As  to  the  latter  part  of  this  count,  which  avers  that  by  means  of  said  conspiracy,  the 
defendants  did  compel  one  \V.  to  turn  out  of  his  employ  one  J.  fl.,  we  remark,  in  the  first 
place,  that  as  the  acts  done  in  pursuance  of  a  cons|iiracy,  as  we  have  bcliirc  seen,  arc 
stated  by  way  of  aggravation,  and  not  as  a  substantive  charge,  if  no  criminal  or  unlawful 
conspiracy  is  stated,  it  cannot  be  aided  and  n)ade  good  by  mere  matter  of  aggravation.  If 
the  principal  charge  falls,  the  aggravation  fills  with  it;  State  v.  Rickey,  4  ilalst.  2;)3. 

"But  further;  if  this  is  to  be  considered  as  a  substantive  charge,  it  would  depend  alto- 
gether upon  the  force  of  the  word  'coni[)el,'  which  may  be  used  in  the  sense  of  coercion, 
or  duress,  by  f(:jrcc  or  fraud.  It  would  therefore  depend  upon  the  context  and  the  con- 
nexion with  other  words,  to  determine  the  s(;nse  in  which  it  was  used  in  the  indictuient. 
If,  for  instance,  the  indictment  IukI  averred  a  cr)ns]>iracy,  b^'  the  defendants,  to  compel  \V. 
to  turn  II.  out  of  his  employment,  and  to  accomplish  that  object  by  the  use  of  if)rce'or 
fraud,  it  would  have  i)ccn  a  very  difi'erent  case  ;  especially  if  it  migiit  be  fa'irly  construed, 
as  pcrhu|)H  in  that  case  it  might  have  been,  that  W.  was  under  obligation,  by  contract,  lor 


CONSPIRACY.  3S5 

falsely  and  fraudulently  conspiring  and  combining,  unjustly  and 
oppressively  to  increase  and  augment  tlie  wages  of  themselves  and 

an  unexpired  term  of  time,  to  employ  and  pay  H.  As  before  remarked,  it  would  have 
been  a  conspiracy  to  do  an  unlawful,  tlioujli  not  a  criminal  act,  to  induce  VV.  to  violate  his 
engagement,  to  the  actual  injury  of  II.  To  mark  the  difference  between  the  case  of  a 
journeyman  or  a  servant  and  master,  mutually  bound  by  contract,  and  the  same  parties 
when  free  to  eno-age  anew,  I  should  have  before  cited  the  case  of  Boston  Glass  Co.  v. 
Binney,  4  Pick.  4:25.  In  that  case,  it  was  held  ac'.ionable  to  entice  another  person's  hired 
servant  to  quit  his  employment,  during  the  time  for  which  he  was  engaged  ;  bat  not  ac- 
tionable to  treat  with  such  hired  servant,  wHiilst  actually  hired  and  employed  by  another, 
to  leave  his  service,  and  engage  in  the  employment  of  the  person  making  the  proposal, 
when  the  term  for  which  he  is  engaged  shall  expire.  It  acknowledges  tiie  established 
principle,  that  every  free  man,  whether  skilled  labourer,  mechanic,  farmer  or  domestic  ser- 
vant, may  work  or  not  work,  or  work  or  refuse  to  work  with  any  company  or  individual, 
at  his  own  option,  except  so  far  as  he  is  bound  by  contract.  But  whatever  might  be  the 
force  of  the  word  'compel,'  unexplained  by  its  connexion,  it  is  disarmed  and  rendered 
liarmless  by  the  precise  statcmant  of  the  means,  by  which  such  compulsion  was  to  be 
effected.  It  was  the  agreement  not  to  work  for  him,  by  which  they  compelled  \V.  to  de- 
cline emploving  H.  longer.  On  both  of  these  grounds,  we  are  of  opinion  that  the  state- 
ment made  in  tiiis  second  count,  that  the  U[\lawful  agreement  was  carried  into  execution, 
makes  no  essential  difference  between  this  and  the  first  count. 

"The  third  count,  reciting  a  wicked  and  unlawful  intent  to  impoverish  one  J.  H.,  and 
hinder  him  from  following  his  trade  as  a  bootmaker,  charges  the  defendants,  with  others 
unknown,  with  an  unlawful  conspiracy,  by  wrongful  and  indirect  means,  to  impoverish 
said  H.,  and  to  deprive  and  hinder  him  from  his  said  art  and  trade  and  getting  his  sup- 
port thereby,  and  that,  in  pursu:ince  of  said  unlawful  combination,  they  did  unlawfully  and 
indirectly  liinder  and  prevent,  &,r;.,  and  greatly  impoverish  him. 

"  If  the  fact  of  depriving  J.  H.  of  the  profits  of  his  business,  by  whatever  means  it  might 
be  done,  would  be  unlawful  and  criminal,  a  combination  to  compass  that  object  would  be 
an  unlawful  conspiracy,  and  it  would  be  unnecessary  to  state  the  means.  Such  seems  to 
have  been  the  view  of  the  court  in  the  King  v.  Eccles,  3  Dougl.  337,  though  the  case  is  so 
briefly  reported,  that  the  reasons,  on  which  it  rests,  are  not  very  obvious.  The  case  seems 
to  have  gone  on  the  ground,  that  the  means  were  matter  of  evidence,  and  not  of  averment; 
and  that  after  verdict,  it  wa-s  to  be  presumed,  that  the  means  contemplated  and  used  were 
suc^h  as  to  render  the  combination  unlawful  and  constitute  a  conspiracy. 

"Suppose  a  baker  in  a  small  village  had  the  exclusive  custom  of  his  neighbourhood,  and 
was  making  large  profits  by  the  sale  ct'  his  bread.  Supposing  a  number  of  those  neigh- 
bours, believing  the  price  of  his  bread  too  high,  should  propose  to  him  to  reduce  his  prices, 
or  if  he  did  flot,  that  they  would  introduce  another  baker;  and  on  his  refusal,  such  other 
baker  should,  under  their  encouragement,  set  up  a  rival  establishment,  and  sell  his  bread 
at  lower  prices;  the  effect  wouJd  bo  to  diminish  the  profit  of  the  former  biker,  and  to  the 
same  extent  to  impoverish  him.  And  it  might  be  said  and  proved,  that  tiie  purpose  of  the 
associates  was  to  diminish  .lis  profits,  and  thus  impoverish  him,  though  the  ultimate  and 
laudable  object  of  the  combination  was  to  reduce  tlie  cost  of  bread  to  themselves  and  their 
neighbours.  The  same  thing  may  be  said  of  all  competition  in  every  branch  of  trade  and 
industry;  and  yet  it  is  through  that  competition,  that  the  best  interests  of  trade  and  in- 
dustry are  promoted.  It  is  scarcely  necessary  to  allude  to  the  familiar  instances. of  oppo- 
sition  lines  of  conveyance,  rival  hotels,  and  the  thousand  other  instances,  where  each  strive 
to  gain  custom  to  himself,  by  ingenious  improvements,  by  increased  industry,  and  by  all 
the  means  by  which  he  m»y  lessen  the  pries  of  commodities,  and  thereby  diminish  the 
profits  of  others, 

"  We  think,  therefore,  that  associitions  may  be  entered  into,  the  object  of  which  is  to 
adopt  measures  that  may  have  a  tendency  to  impoverish  anotiier,  that  is,  to  diminish  his 
gains  and  profits,  and  yet  so  far  fron  being  criminal  or  unlawful,  the  objoct  may  be  iiighly 
meritorious  and  public  sjjirited.  Tiie  legality  of  such  an  association  will  theretbre  depend 
upon  the  means  to  be  used  for  its  accomplishment.  If  it  is  to  be  carried  into  effect  by 
fair  or  honourable  and  lawful  means,  it  is,  to  say  the  least,  innocent;  if  by  falsehood  or 
force,  it  may  be  stami)ed  with  the  cliaracter  of  conspiracy,  it  follows  as  a  necessary  con- 
sequence, that  if  criminal  and  indictable,  it  is  so  by  reason  of  the  criminal  means  intended 
to  be  employed  for  its  accomplishment;  as  a  furtiier  legal  consequence,  that  as  the  crimi- 
nality will  depend  on  the  means,  those  means  must  be  stated  in  the  indictment.  If  the 
same  rule  were  to  prevail  in  criminal,  which  holds  in  civil  proceedings — that  a  case  de- 
fectively stated  may  be  aided  by  a  verdict — then  a  court  might  presume,  aflcr  verdict,  that 
the  indictment  was  sup[)orted  by  proof  of  criminal  or  uidawful  means  to  effect  the  object. 
33 


386  OFFENCES  AGAINST  SOCIETY. 

Other  workmen  and  journeymen  in  the  said  art,  and  unjustly  to  exact 
and  extort  great  sums  of  money  for  their  labour  and  hire  in  the  said 
art,  mystery  and  manual  occupation,  from  their  masters,  who  employ 
them  therein,  with  force  and  arms,  on  the  same  day  and  year  afore- 
said, at  the  parish  aforesaid  in  tlie  county  aforesaid,  together  with 
divers  other  workmen  and  journeymen  in  the  same  art,  mystery  and 
manual  occupation  (whose  names  to  the  jurors  aforesaid  are  as  yet 
unknown),  unlawfully  did  assemble  and  meet  together,  and  so  being 
assembled  and  met,  did  then  and  there  unjustly  and  corruptly  con- 
But  it  js  an  established  rule  in  criminal  cases,  that  the  indictment  must  state  a  complete 
indictable  otFence,  and  cannot  be  aided  bj  the  proof  offered  at  the  trial. 

"The  fourth  count  avers  a  conspiracy  to  inipovcrisii  J.  II.,  without  stating^  any  means; 
and  the  fifth  alleges  a  conspiracy  to  impoverish  employers,  by  preventing  and  hindering 
them  from  employing  persons,  not  members  of  the  Bootmaker's  Society  ;  and  these  re- 
quire no  lemarks,  which  have  not  been  already  made  in  relerence  to  the  other  counts. 

"One  case  was  cited,  which  was  supposed  to  be  inuch  in  point,  and  which  is  certainly 
deserving  of  great  res])ect ;  People  v.  Fisiicr,  14  Wend.  U.  But  it  is  obvious,  that  tiiis 
decision  was  lounded  on  tiie  construction  of  tlie  revised  statutes  of  New  York,  by  whieli 
this  matter  of  conspiracy  is  now  regulated.-  It  was  a  conspiracy  by  journeymen  to  raise 
their  wages,  and  it  was  decided  to  be  a  violation  of  the  statutes,  making  it  criminal  to 
commit  any  act  injurious  to  trade  or  commerce.  It  has,  liierefore,  an  indirct  applicatijDn 
only  to  to  the  present  case.  • 

"A  caution  on  this  subject,  suggested  by  th6  commissioners  for  revising  the  statutes  of 
New  York,  is  entitled  to  great  consideration.  They  are  alluding  to  the  question,  whether 
the  law  of  conspiracy  should  be  so  extended,  as  to  embrace  every  case  where  two  or  more 
unite  in  some  fraudulent  measure  to  injure  an  individual,  by  means  not  in  themselves 
criminal.  'Tiie  great  difbculty,'  say  tliey,  'in  enlarging  tlie  definition  of  this  offence, 
consists  in  the  inevitable  result  of  depriving  the  courts  of  equity  of  the  most  effectual 
means  of  detecting  fraud,  by  compelling  a  discovery  on  oath.  It  is  a  sound  principle  of 
our  institutions,  that  no  man  shall  be  compelled  to  accuse  himself  of  any  ciime;  which 
ought  not  to  be  violated  in  any  case.  Yet-such  must  be  the' result,  or  the  ordinary  juris- 
diction  of  courts  of  equity' must  be  destroyed,  hy  declaring  any  private  fra'id,  when  com- 
mitted by  two,  or  any  concert  to  commit  it,  criminal;'  9  C'ow.  62.5.  In  New  Jersey,  in  a 
case  which  was  much  considered,  it  was  held  U\at  an  indictment  will  rot  lie  for  a  con- 
spiracy to  conmiit  a  civil  injury  ;  State  «.,  Rickey,  4  Halst.  2i)3.  And  si  ch  seemed.to  be 
tlie  o])inion  of  1/d.  Ellenborough,  in  the  King  v.  Turner,  13  East  231  ;  in  which  lie  con- 
sidered that  the  case  of  the  King  v.  Eccles,  3  Dougl.  337,  though  in  form  an  indictment 
for  a  conspiracy  to  prevent  an  individual  from  carrying  on  his  trade,  ye  in  substance  was 
an  indictment  for  a  conspiracy  in  restraint  of  trade,  affecting  the  public 

"It  appears  by  the  bill  of  exceptions,  that  it  was  contended  on  the  part  of  the  defen- 
dants, that  tlie  indictment  did  not  set  forth  any  agreement  to  do  a  crininal  act,  or  to  do 
any  lawful  act  hy  criminal  means,  and  that  the  agreement  therein  set  i  irth  did  not  consti- 
tute a  conspiracy  indictaljle  by  the  law  of  this  state,  and  that  the  coUjI  was  requested  so 
to  instruct  the  jury.  This  the  court  decliued  doing,  but  instructed  1); ;  jury  that  the  in- 
dictment did  describe  a  confederacy  among  the  delendaiits  to  do  an  ui  lawful  act',  and  to 
do  the  same  by  unlawful  means — that  the  society,  organized  and  associated  for  the  pur- 
[X)ses  described  in  the  indictment,  was  an  unlawful  conspiracy  against  thi  laws  of  this 
state,  and  that  if  the  jury  believed,  from  the  evidence,  that'he  defendants?  o.  any  of  thcin 
had  engaged  in  such  confederacy,  they  were  bound  to  find  such  of  them  gu  itv. 

"In  this  opinion  of  the  learned  judge,  this  court,  fbr  the  reasons  stated,  c  unot  concur. 
Whatever  illegal  purpose  can  be  found  in  the  constitution  of  the  Bootinakci  s  Society,  it 
not  being  clearly  set  (ijrth  in  the  indictment,  cannot  be  relied  upon  1o  support  ,liis  convic- 
tion.  So  if  any  facts  were  disclosed  at  the  trial,  which,  it"  properly  averred,  would  have 
given  a  different  character  to  the  iri<iictmenf,  they  do  not  appear  in  the  bill  of  exceptions, 
nor  could  they,  after  verdict,  aid  the  indictment.  But  looking  solely  at  the  indictment, 
disregarding  the  qualilying  e|)ithets,  recitiils  and  immaterial  allej^f^ations,  and  confining 
ourselves  to  facts  .so  averred  as  to  be  capable  of  iieing  traversed  and  put  in  issue,  we  can- 
not perceive  that  it  charges  a  criminal  <-nnspiracy  |)uiiishable  by  law.  The  exceptions 
rnusl,  iIk  refor<',  be  sustained,  and  tin-  ju(l;:ni(  rit  arrested." 

Some  dillieiilty  will  arise  in  adaptiiifi  the  indictment  in  the  text  either  to  the  above  deci- 
sion,  or  to  the  present  course  of  popular  tentimenl  on  the  subject.  See,  liowever,  notes  on 
p.  3«7  and  388. 


CONSPIRACV.  387 

spire,  combine,  confederate  and  agree  among  tliemselves,  that  none 
of  the  said  conspirators,  after  the  same  daj'^  of  ,  would 

make  or  do  their  work  at  any  lower  or  lesser  rate  than  five  shillings 
for  the  hewing  of  every  hundred  of  spokes  for  wheels,  and  eight 
shillings  for  making  of  every  pair  of  hinder  wheels,  for  or  on  account 
of  any  master  or  employer  whatsoever  in  the  said  art,  mystery  and 
occupation,  and  also  that  none  of^them  the  said  conspirators  would 
work  day  work  or  labour  any  longer  than  from  the  hour  of  six  in 
the  morning  till  the  hour  of  seven  in  the  evening  in  each  day  from 
thenceforth,  to  the  great  damage  and  oppression  not  only  of  their 
masters  employing  them  in  the  said  art,  mystery  and  occupation,  but 
also  of  divers  others  of  his  majesty's  liege  subjects,  and  against,  &c. 
[Conclude  as  in  book  1,  chap.  3). 

Conspiracy  by  workmen,  6^ c,  in  the  employ  of  A.  and  B.,  to  prevent  their 
musters  from  retaining  any  person  as  an  apprentice. (m) 

That  the  defendants,  with  divers  other  evil  disposed  persons  to  the 
jurors  unknown,  on,  &c.j,  at,  &c.,  Jaeing  journeymen  and  workmen  in 

(ot)  R.  v.  Ferguson,  2  Stark.  N.  P.  C.  489. 

Ill  the  second  count  it  was  cliarg-ed  that  the  defendants,  toffctbcr  with  other  evil  dis- 
posed persons,  afterwards,  to  wit,  on,  &,c.,  at,  &c.,  being-  sucii  journeymen  and  workmen 
as  aforesaid,  in  the  ernployment  of  the  said  S.  D.  and  R.  T.,  tniiliciously  intending  to  liurt, 
iujure  and  impoverish  their  said  employers  and  to  prevent  them  from  retaining  any  other 
journeymen  and  workmen,  and  retaining  and  instructing  apprentices  in  tiie  said  occupa- 
tion, did  conspire,  combine,  confederate  and  agree  to  quit,  leave  and  turn  out  from  their 
said  employ  meut  ai  one  and  ihe  same  time  together,  to  the  great  damage,  &.c. 

In  a  third  count  it  was  alleged  tiiat  the  defendants,  together  with  the  said  other  evil 
disposed  persons,  afterwTards,  to  wit,  on,  &.c,  at,  &.C.,  being  feuch  journeymen  and  work- 
men as  aforesaid,  in  the  employment  of  the  said  S.  D.  and  R.  F.,  maliciously  intending  to 
control,  injure,  terrify  and  impoverish  their  said  employers,  and  force  and  compel  them  to 
dismiss  from  their  said  employment,  divers  persons  then  and  there  retained  by  them  as 
journeymen  workmen  and  apprentices  therein,  unlawfully  did  conspire,  combine,  confede- 
rate and  agree  to  quit,  leave  and  turn  out  from  their  said  employment,  until  the  said  last 
mentioned  journeymen,  workmen  and  apprentices  should  be  dimissed  by  their  said  mas- 
ters and  employers,  to  the  great  damage,  &,c. 

It  appeared  that  upon  the  prosecutor^  taking  into  their  employment  a  young  person  of 
the  name  of  G.  as  an  apprentice,  the  defendants,  together  with  a  number  of  journeymen, 
declared  to  the  presecutors  that  they  would  not  stand  it,  and  after  consultation  left  their 
work,  and  tiiat  E.'s  agreement  was  given  up  to  him,  and  he  went  away.  The  rest  of  the 
workmen  were  conciliated  for  tlie  time,  by  the  prosecutors  agrecin*f  to  relinquish  G.  the 
apprentice.  Sometime  afterwards  F.  and  the  other  workmen  again  turned  out,  upon  the 
prosecutors  taking  into  their  service  another  apprentice  of  the  name  of  M.  At  the  time  of 
these  turn-outs,  the  prosecutors  had  in  their  employment  sixteen  journeymen  and  eight 
apprentices,  and  it  appeared  upon  the  cross-examination  of  one  of  the  prosecutors  that  the 
objection  which  had  been  made  by  the  defendants  and  their  associates,  did  not  apply  to 
t:ic  eight  apprentices  wljich  the  prosecutors  then  had  in  their  employment,  but  that  they 
objected  to  the  prosecutors  taking  a  greater  number  of  apprentices  than  half  the  number 
of  journeymen. 

It  was  objected  on  behalf  of  the  defendants,  upon  this  evidence,  that  it  varied  from  the 
indictment,  which  alleged  generally  a  conspiracy  to  prevent  the  masters  from  takin?  into 
tlieir  employment  any  apprentices,  &c.;  whereas  it  should  have  been  alleged  according  to 
the  fact,  to  be  a  cons[)iracy  to  hinder  their  masters  from  taking  into  their  employment  any 
more  apprentices,  or  a  number  exceeding  half  the  number  of  journeymen  ;  but. 

Wood  B.  was  of  opinion,  that  the  indictment  was  sullieienlly  supported  by  the  evidence, 
since  the  etFect  was  to  prevent  the  masters  from  taking  into  their  employment  any  person 
as  an  apprentice,  to  be  taught  and  instructed,  as  alleged  in  the  indictment. 

The  defendants  were  both  found  guilty. 

When  the  defendants  were  brouglit  before  the  Court  of  K.  B.  for  judgment  in  the  ensu- 


388  OFFENCES  AGAINST  SOCIETY. 

the  trade,  mystery  and  manual  occupation  of  engravers,  in  the  em- 
ployment of  S.  D.  and  R.  F.,  did  conspire,  combine,  confederate  and 
agree  together  to  prevent,  hinder  and  deter  their  said  masters  and 
employers  from  retaining  and  taking  into  their  employment  any  per- 
son as  an  apprentice,  to  be  taught  and  instructed  in  the  said  trade  and 
occupation,  to  the  great  damage,  &c.,  to  the  evil  example,  &c.,  and 
against,  &c.     [Conclude  as  in  book  \,  chap.  3). 

Conspiracy  h/  parties  evga^^ed  on  the  public  works  to  increase  the  rate 
of  passage  money  and  freight. {n) 

That  A.,  late  of,  &c.,  canal  transporter,  B.,  late  of,  &c.,  canal  trans- 
porter, C,  late  of,  &c.,  canal  transporter,  D.,  late  of,  &c.,  canal  transport- 
ing- term,  the  objection  was  renewed,  but  the  court  were  of  opinion,  that  the  indictment 
was  sufficiently  proved  :  and  it  was  intimated,  tliat  the  evidence  applied  to  the  third  count 
as  well  as  tiie  first,  since  in  order  to  support  the  third  count,  it  was  sufficient  to  prove  that 
the  defendants  turned  out  from  their  employment  with  intent  to  compel  their  masters  to 
dismiss  any  one  apprentice. 

The  defendants  received  sentence  of  fine  and  imprisonment- 

(n)  This  form,  for  which  I  am  indebted  to  Mr.  IVIao-raw,  the  prosecuting  attorney  in  the 
City  of  Pittsburg,  was  prepared  by  eminent  counsel  in  that  city,  and  was  held  sufficient  to 
support  a  conviction.  The  question  of  the  indictability  of  the  offence  was  examined  with 
great  clearness  by  Judge  Grier,  now  of  the  Supreme  Court  of  the  United  States,  on  a  pre- 
liminary hearing.  ^ 

"The  defendnnts  pray  to  be  discharged,"  he  said,  "on  the  ground  that  tliey  have  been 
imprisoned  contrary  to  law,  or  in  other  word.s,  that  tlie  charge  on  wliieli  they  are  commit- 
ted is  not  indictable,  and  not  an  offence  known  to  the  law.  It  is  admitted  that  the  com- 
mitnunt  states  that  it  is  for  a  'conspiracy  and  unlawfully  combining,'  &c. ;  but  it  is  con- 
tended  that  the  oath  on  which  tJle  eoniniitnieiiL  is  fountlud,  does  nut  set  foi  tli  any  surb 
offence.  If  this  be  so  the  defendants  should  be  discharged.  For  by  the  constitution  of 
the  state,  no  warrant  can  issue  to  seize  any  person,  witliout  probable  cause  supported  by 
oath  or  affirmation.  We  are  therefore  bound,  in  justice  to  the  prisoners,  to  examine 
whetlicr  the  oath  on  whieli  the  commitments  are  founded,  show  '  probable  cause,'  or  in 
any  other  words,  whether  it  states  any  offence  known  to  the  law,  for  which  the  defendants 
are  criminally  liable. 

"The  affidavit  states  that  the  defendants  being  engaged  in  the  business  of  carriers  and 
transporters  of  merchandise  on  tlie  Pennsylvania  canal,  on  the  ITth  day  of  December, 
1841,  and  intending  to  unite  themselves  into  a  board  and  combination,  to  regulate  the 
price  of  transportation  of  merchandise  on  said  canal,  did  assemble  and  meet  together,  and 
did  then  and  there  agree  upon  and  adopt,  and  severally  swear  to  observe,  a  certain  pre- 
amble and  constitution  (of  which  a  coi)y  is  annexed),  for  their  regulation  as  carriers  and 
transporters,  «fec. 

"'J"he  pa ptr  referred  teas  containing  this  unlawful  combination  or  conspiracy,  is  en- 
titled, 'The  Preamble  and  Constitution  adopted  by  the  Hoard  of  Canal  Transporters,  at 
Pittsburg,  1841.' 

"  It  is  signed  by  the  prisoners  and  others,  and  sworn  to  in  the  following  words : 

"'We  the  subscribers,  do  severally  swear  or  affirm,  tiiat  we  will  to  tiie  best  of  our  abili- 
ties and  understanding  carry  out  tlie  views  of  the  foregoing  instrument,  to  which  our 
names  are  attat;hed,  in  sincerity  and  good  faitii.' 

"  This  constitution  as  it  is  called,  embraces  no  less  than  twelve  sections  or  articles,  each 
of  considtrable  length;  in  a  brief  outline  of  some  of  its  j)rovisions,  it  will  be  necessary  to 
state  in  order  to  understand  its  rnciuiiiij,'  and  elleet : 

"  1.  The  board  is  to  consist  often  proprietors  and  agents,  who  are  conducting  the  busi- 
ness of  the  several  lines  (of  trans[)ortation;,  at  Pittsburg,  whose  names  are  annexed,  &-c. 

"2.  To  have  a  ()resi(lent  and  secretary. 

"3.  The  board  shall  fix  the  time  for  the  delivery  of  goods  at  their  destination,  and  the 
rates  of  freight,  on  all  goods  going  eastward,  &c. — and  no  member  of  the  board  shall  be 
allowed  to  forward  freight  at  a  less  rate  or  shorter  time  than  that  agreed  on  previously, 
and  fixed  by  the  board. 

"4.  Kaeh  liru'  to  furnish  weekly  «^r  mnnlbly  accounts  of  the  amonnt  of  freight  shipped, 
prices  charged,.  &,c.,  unJer  oalh,  and  in  the  event  of  any  line  being  out  of  lieighl,  a  fund 


CON'SPIRACY.  3S9 

er,  E.,  late  of,  &c.,  canal  transporter,  F.,  late  of,  &c.,  canal  transporfer, 
G.,late  of,  &c., canal  transporter,  H.,  late  of,  &c.,  canal  transporter,  and 

to  be  formed,  by  the  payment  of  seven  per  cent,  on  all  freig-lits,  to  be  divided  into  nine 
shares,  and  each  line  to  draw  one-ninth  without  rcg-ard  to  the  amount  put  in  by  said 
line. 

"5.  Lines  violating  the  constitution  to  forfeit  their  share  of  the  fund. 

"  6.  Clerics  of  the  funds  to  liave  no  business  connexions  vifith  mercantile  houses  for  the 
purpose  o? sccuih\g freight,  itijiuencr  or  patronage. 

"  7.  No  line  to  have  a  freight  agent,  &.C.,  nor  shall  any  person  he  allowed  to  receipt, 
agree  or  contract,  to  forward  goods,  on  any  other  terms  than  those  set  forth  (in  that 
article). 

"8.  No  member  to  pay  a  bonus  for  freight,  &c.,  or  propose  to  sell  produce  free  of  com- 
mission, or  carry  packages  or  passengei^s  with  a  view  to  lessen  the  cost  of  freight,  nor 
take  currency  in  payment  of  freight,  yvitliout  exacting  the  regular  discount  in  addition  to 
tlie  full  account  of  freight;  and  any  arrangement  or  contract  for  freight  that  will  in  any 
way  reduce  the  amount  below  the  regular  established  rate,  shall  be  considered  a  direct 
violation  of  the  constitution. 

"9.  Sets  forth  the  mode  of  proceeding  when  any  one  is  suspected  of  violating  the  con- 
stitution. 

"  10.  No  freight  to  be  brought  west  at  lower  prices  than  tliose  established. 

"11.  iVIeinbers  may  withdraw  on  two  weeks'  notice. 

"  12.  Each'  line  to  produce  at  every  meeting  an  affidavit  in  the  fjllowing  form  :  '  I,  A. 
B.,  do  solemnly  swear.that  since  the  last  regular  meeting  of  tlie  board,  I  have  not  in  any 
manner,  shape  or  form,  directly  or  indirectly,  violated  tlie  intent,  meaning-  or  spirit  of  the 
constitution,  as  agreed  upon  by  the  agents  of  the  lines  stationed  at  Pittsburg,  and  that 
the  annexed  list  is  a  correct  return  of  freio-.'it,'  &,c. 

"This  constitution  (as  it  is  called),  or  articles  of  confederation  (as  they  might  be  called), 
appear  to  have  been  drawn  with  considerable  care,  and  whatever  its  object  or  intention 
may  be,  is  guarded  with  unusual  sanctions  to  increase  its  stringency. 

"The  objects  of  the  confederation  are  plainly  stated,  and  its  consequences  and  effects 
upon  the  community  are  obvious  to  the  most  careless  observers. 

"  It  is  nothing  less  than  a  combination  between  the  cliief  ca4iitalists  and  carriers  on  this 
line  of  our  public  works  to  raiso  or  depress  the  rate  of  freight,  as  it  may  suit  tlieir  own  in- 
terests, either  to  increase  their  profits  or  crush  a  competitor. 

"  Does  such  a  combination  come  within  the  description  of  tliose  which  are  punishable 
by  indictment  as  conspiracies  at  common  law?  On  this  subject  it  would  be  useless  to 
notice  the  various  and  confused  dicta  of  what  is  necessary  to  constitute  the  oft'ence,  as 
there  is  no  subject  in  the  whole  range  of  criminal  jurisprndence  so  uncertain  and  unsettled 
in  its  definitions  and  principles.  But  so  far  as  they  have -any  application  to  the  piesent 
case,  they  are  lucidly  and  correctly  stated  by  Chief  Justice  Gibson,  in  the  case  of  Com.  », 
Carlisle  (Journal  of  Jurisprudence  225).  'I  take  it  tiieii  (says  the  chief  justice),  a  com- 
bination is  criminal  whenever  the  act  to  be  done  has  a  necessary  tendency  to  prejudice  the 
jtublic,  or  to  oppress  individuals  by  unjustly  subjecting  them  to  the  power  of  the  contede- 
rate,  and  giving  effect  to  the  purposes  of  the  latter,  whether  of  extortion  or  mischief.' 
According  to  this  view  of  tiie  law,  a  combination  of  employers  to  depress  the  wages  of 
journeymen,  below  what  they  would  be  if  there  were  no  recurrence  to  artificial  means,  is 
criminal.  So  also.  Chief  Justice  Savage  (in  People  v.  Fisher,  14  Wend.  9),  observes:  '  It 
is  important  to  the  best  interest  of  society  that  the  price  of  labour  be  left  to  regulate  itself, 
or  rather  to  be  limited  by  the  demand  for  it.  Combinations  and  confederacies  to  enhance. 
or  reduce  the  paces  of  labour,  or  of  any  articles  of  trade  or  commerce,  are  injurious. 
They  niity  be  oppressive  by  compelling  the  public  to  give  more  for  an  article  of  necessity 
or  convenience  than  it  is  worth;  or,  on  the  other  hand,  of  compelling  the  labour  of  the 
mechanic  for  less  than  its  value.  Without  any  officious  or  improper  interference  on  the 
subject,  the  price  of  labour  or  the  wages  of  mechanics  will  be  regulated  by  the  demand  for 
the  manufictured  article  and  the  value  of  that  which  is  paid  for  it;  but  the  right  does  not 
exist  eitlier  to  enhance  the  price  of  the  article  or  the  wages  of  the  mechanic  by  any 
forced  and  artificial  means.  The  man  who  owns  an  article  of  trade  or  commerce  is  not 
obliged  to  sell  it  for  any  particular  price,  nor  is  the  mechanic  obliged  by  law  to  labour  for 
any  particular  reward.' 

"The  one  may  ref\ise  to  sell,  and  the  other  to  work,  except  on  his  own  terms,  but  he 
has  no  right  to  say,  that  another  shall  not  exercise  the  same  liberty. 

"'There  is,'  says  C.  J.  Gibson,  'between  the  difl'erent  parts  of  the  body  politic,  a  re- 
ciprocity of  action,  which  like  the  antagonizing  muscles  in  the  natural  body,  not  only  pre- 
scribes  to  each  its  appropriat«*.  state  and  condition,  but  regulates  the  motioa  of  the  whole. 

33* 


890  OKFENCKS  A(JA1NST  SOCIETY. 

I.,  late  of,  &.C.,  canal  transporter,  being  engaged  in  the  carriage  for  hire 
of  goods,  wares  and  merchandise  on  the  Pennsylvania  canal,  and  the 
several  railways  connected  therewith,  forming  a  Hne  of  communication 
between  the  Cities  of  Philadelphia  and  Pittsburg,  in  said  common- 
wealth, and  not  being  content  with  the  usual  rates  and  prices  for 
which  they  and  others  were  accustomed  to  work  and  labour  in  the 
said  business  and  occupation,  bnt  contriving  and  intending  unjustly 
and  oppressively  to  increase  and  augment  the  said  rates  and  prices, 
to  counteract  the  effect  of  free  coiupetition  on  the  speed  and  price  of 
transportation,  and  thereby  to  exact  and  procure  great  sums  of  money 
from  the  citizens  of  this  commonwealth,  and  from  all  others  having 
goods,  wares  or  merchandise  to  be  transported  on  said  canal  and 
railways,  did  on,&.c.,  with  force  and  arms  at,  &c.,  combine,  conspire, 
confederate  and  unlawfully  agree  together  and  did  enter  into  a 
written  compact  signed  and  sworn  by  them,  and  entitled  "pream- 
ble and  constitution  adopted  by  the  board  of  canal  transporters  at 
Pittsburg,"  whereby  it  was,  amongst  other  things,  provided,  that 
said  board  should  consist  of  the  proprietors  and  agents  who  are  con- 
ducting the  business  of  the  several  lines  at  Pittsburg,  whose  names 
are  thereunto  aimexed.  And  by  the  said  preamble  and  constitution 
it  was  provided,  that  "  the  board  shall  fix  the  time  for  the  delivery  of 
goods  at  tlieir  destination,  and  the  rates  of  freight  on  all  goods  going 
eastward,  such  rates  affording  a  fair  remuneration  to  the  transporter, 
without  imposing  any  oppressive  rate  on  the  public,  and  no  member 
of  this  board,  proprietor,  agent,  clerk  or  any  other  person  shall,  by 
agreement  or  otherwise,  either  directly  or  indirectly,  forward  or  otier 
to  forward,  freight  of  any  description,  at  a  less  rate  or  shorter  time 
than  that  agreed  on  previously,  and  fixed  by  the  board  ;"  and  in 
another  part  of  the  same  preamble  and  constitution,  it  was  declared 
that  "any  arrangement  or  contract  for  freight,  that  will  in  any  way 
reduce  the  amount  below  the  regular  established  rate,  shall  be  con- 
sidered a  direct  violation  of  the  constitution  ;"  and  the  said  preamble 
and  constiiution  provided  that  "no  proprietor,  agent,  clerk  or  any 
person  for  them,  shall  make  contracts  for  goods  coming  westward,  at 
any  rate  or  rates  less  tiian  those  established  at  the  place  of  shipment, 
and  recognized  and  agreed  on  by  the  partners  of  the  several  trans- 
portation companies  herein  concerned ;"  which  said  combination  so 
as  aforesaid  entered  into  is  of  grievous  prejudice  to  the  common  and 
public  good  and  welfare,  of  evil  example,  &c.,  and  against  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

Second  cow  it. 

That  the  said  A.,  B.,  C,  D.,  E.,  F.,  G.,  H.  and  I.,  being  engaged  in  the 
carriage  for  hire  of  goods',  wares  and  merchandise  on  the  Pennsyl- 
vania canal,  and  the  several  railways  connected  therewith,  forming  a 
line  of  connnunication  between  the  Cities  of  Philadelphia  and  Pitts- 

Tlic  (.flTorts  of  an  individual  to  disturb  tliin  oquilibrinm  c^n  never  be  pcrcoptiblo,  but  the 
incrfasc  of  power  by  tiie  combination  of  iricans,  being'  in  {rconictricul  proportion  to  tlie 
number  eonecrned,  an  association  may  be  able  to  jp;-ivo  an  impulse,  not  only  o|)[ues8ive  to 
individuals  but  mischievous  to  the  public  at  larg-e,  and  it  is  the  em[)loymcnt  of  an  cnfjine 
so  dangerous  and  powerful,  that  gives  criminality  to  an  act  that  would  lie  perfectly  iuno- 
rent,  at  least  iti  a  legal  view,  when  donu  by  an  individual.'  " 


CONSPIRACY.  391 

burg  in  said  commoinvealth,  and  not  being  content  with  the  usual 
rates  and  prices  for  which  they  and  others  were  ^iccustonied  to  work 
and  labour  in  the  said  business  and  occupation,  but  contriving  and 
intending  unjustly  and  oppressively  to  increase  and  augment  the 
said  rates  and  prices,  to  counteract  the  etlect  of  free  competitiou  on  the 
speed  and  price  of  transportation,  and  thereby  to  exact  and  procure 
great  sums  of  money  from  the  citizens  of  this  commonwealth,  and 
from  all  others  having  goods,  wares  or  merchandise  to  be  trans- 
ported on  said  canal,  did,  on  the  day  and  year  aforesaid,  combine, 
conspire,  confederate  and  unlawfully  agree  together,  and  did  enter 
into  a  written  compact,  signed  and  sworn  to  by  them,  and  entitled 
"preamble  and  constitution  adopted  by  the  board  of  canal  trans- 
porters at  Pittsburg,"  whereby  it  was  amongst  other  things  provided, 
that  said  board  should  consist  of  the  proprietors  and  agents  who  are 
conducting  tlie  business  of  the  several  lines  at  Pittsburg,  whose 
names  are  thereunto  annexed,  and  by  the  said  preamble  and  con- 
stitution it  was  provided,  that  "the  board  shall  fix  the  time  for  the 
delivery  of  goods  at  their  destination,  and  the  rates  of  freight  on  all 
goods  going  eastward,  such  rates  affording  a  fair  remuneration  to  the 
transporters,  without  imposing  any  oppressive  rate  on  the  public: 
and  no  member  of  this  board,  proprietor,  agent,  clerk  or  any  other 
person  shall,  by  agreement  or  otherwise,  either  directly  or  indirectly, 
forward  or  ofter  to  forward  freight  of  any  description  at  a  less  rate, 
or  shorter  time,  than  that  agreed  on  previously,  and  fixed  by  the 
board;"  and  in  another  part  of  the  same  preamble  and  constitution 
it  was  declared,  that  "  any  arrangement  or  contract  for  freight  that 
will  in  any  way  reduce  the  amount  below  the  regular  established 
rate,  shall  be  considered  a  direct  violation  of  the  constitution;"  and 
the  preamble  and  constitution  provided  that  "  no  proprietor,  agent, 
clerk,  or  any  person  for  them,  shall  make  contracts  for  goods  coming 
westward  at  any  rate  or  rates  less  than  those  established  at  the  place 
of  shipment,  and  recognized  and  agreed  on  by  the  partners  of  the 
several  transportation  companies  herein  concerned;"  and  the  said  A., 
B.,  C,  D.,  E.,  F.,  G.,  H.  and  I.,  in  pursuance  of  the  said  unlawful  con- 
spiracy, combination  and  agreement,  did  refuse,  and  for  a  long  time 
continued  to  refuse  to  work  and  labour  in  the  business  and  occupa- 
tion aforesaid,  except  at  the  rates  and  prices  fixed  and  established  by 
the  aforesaid  board  ;  which  said  conspiracy,  so  as  aforesaid  carried  into 
execution,  is  of  grievous  prejudice  to  the  common  and  public  good 
and  welfare,  of  evil  example,  &c.,  and  against,  &c.  {Conclude  as  in 
book  1,  ckap.  3). 

Tliird  cnunt. 

That  the  said  A.,  B.,  C,  D.,  E.,  F.,  G.,  H.  and  I.,  being  engaged  in  the 
carriage  for  hire  of  goods,  wares  and  merchandise  on  the  Pemisyi- 
vania  canal,  and  the  several  railways  connected  therewith,  forming  a 
line  of  communication  between  the  Cities  of  Philadelphia  and  Pitts- 
burg in  said  commonwealth,  and  not  being  content  with  the  usual 
rates  and  prices  for  which  they  and  others  were  accustomed  to  work 
and  labour  in  the  said  business  and  occupation,  but  contriving  and 
intending  unjustly  and  oppressively    to  increase  and  augment  said 


392  OFFENCES  AGAI.VST  SOCIKTY. 

rates  and  prices,  to  counteract  tlie  eflect  of  free  competition  on  the 
speed  and  price  of  transportation,  and  tliereby  to  exact  aud  procure 
great  sums  of  money  from  the  citizens  of  this  commonweahh,  and 
from  all  others  having  goods,  wares  or  merchandise  to  be  transported 
on  the  said  canal  and  railways,  did,  on  the  day  and  year  aforesaid 
combine,  conspire,  confederate  and  unlawfully  agree  together,  to 
raise  and  keep  up  the  prices  and  rates  of  transportation  as  aforesaid; 
to  the  grievous  prejudice  of  the  common  and  pubhc  good  and  wel- 
fare, of  evil  example,  &c.,  and  against,  &c.  [Conclude  as  in  book  1, 
chup.  3). 

Fourth  count. 

That  the  said  A.,  B.,  C,  D.,  E.,  F.,  G.,  H,  and  L,  being  canal  trans- 
porters as  aforesaid,  and  designing  and  intending  to  form  and  unite 
themselves  into  an  unlawful  chib  and  combination,  and  to  make 
and  ordain  unlawful  and  arbitrary  rules  and  orders  amongst  them- 
selves, and  thereby  to  govern  tliemselves  in  their  said  business  as 
canal  transporters,  and  unlawfully  and  unjustly  to  exact  and  extort 
great  sums  of  money  by  means  thereof,  on  the  day  and  year  aibre- 
said,  with  force  and  arms  at  the  county  aforesaid,  did  unlawfully 
assemble  and  meet  together,  and  being  so  met  together  did  then  and 
there  unjustly  and  corrnptly  combine,  conspire,  confederate  and 
agree,  that  none  of  them  the  said  conspirators  would  thereafter  trans- 
port or  carry  any  goods,  wares,  merchandise  or  other  freight  on 
the  Pennsylvania  canal,  and  the  several  railways  connected  there- 
with, formuig  a  line  of  commimication  between  the  Cities  of  Phila- 
delphia and  Pittsburg,  at  a  less  rate,  or  in  a  shorter  time  than  should 
have  been  previously  lixed,  agreed  upon  and  allowed  by  tlie  said 
conspirators;  to  the  great  prejudice  of  the  common  and  public  good 
and  welfare,  to  tlie  evil  example,  &c.,  and  against,  &c.  {Conclude  as 
in  book  1,  chap.  3.) 

Conspiracy  to  charge  a  man  with  a  crime. (o) 

That  J.  S.,  late  of,  &c.,  labourer,  and  A.  his  wife,  and  J.  W.,  late 
of,  &:c.,  carpenter,  and  E.  W.,  late  of,  &.C.,  labourer,  being  evil  dis- 
posed persons,  and  wickedly  devising  and  iiUending  not  only  to 
deprive  one  J.  N.  of  his  good  name,  fame,  credit  and  reputation,  but 
also  to  subject  him  as  far  as  in  them  lay  to  the  pains  and  penalties 
by  the  laws  of  his  kingdom  made  and  provided  against  and  inflicted 
upon  persons  guilty  of  (rape),  on,  &c.,  with  force  and  arms,  at,  &c., 
did  amongst  themselves,  conspire,  combine,  confederate  and  agree  to- 
gether, falsely  to  charge  and  accuse  the  said  J,  N.,  that  he  the  said  J. 
N.  had  then  lately, before  (feloniously  ravished  and  carnally  known 
the  said  A.,  violently  and  against  her  will  and  consent).  That  tlie 
said  J.  S.  and  A.  his  wife,  and  J.  W.  and  E.  VV.,  afterwards,  to  wit,  on, 
&.C.,  at,  &c.,  in  pursuance  of  and  according  to  the  said  conspiracy, 

(o)  This  is  taken  from  Arclihold's  C.  I*.  r>l.li  Am.  cd.  G72.  Sec  for  conspiracy  to  cliariire 
a  man  with  forjrcry,  4  Went.  8G ;  sodomy,  C.  (Jir.  Com.  126,  post  'S[)3 ;  larceny,  ().  CJir. 
Con),  l.'i.'i;  .3  IJurr.  1320;  receiving  sto'en  goods,  C.  Cir.  Com.  125,  pvsl  3^4;  poisoning 
liorscs,  4  Went.  L)8. 


CONSPIRACY.  393 

combination,  confederacy  and  agreement  among  themselves  had  as 
aforesaid,  {here  set  out  the  overt  acts  as  in  precedents  above;  see  ante, 
p.  343,  et  seq.;  introducing  the  second  and  each  of  the  subsequent 
acts  thus) :  That  in  further  pursuance  of  and  according  to  the  said 
conspiracy,  combination,  confederacy  and  agreement  amongst  them, 
the  said  J.  S.  and  A.  his  wife,  and  J.  W.  and  E.  W.  had  as  aforesaid, 
they  the  said,  &c.,  on,  &c.,  at,  &c.,  {continuing  the  indictment  from 
the  above  asterisk,  as  thus):  falsely  and  unlawfully  in  the  presence 
and  hearing  of  divers  persons,  did  charge  and  accuse  the  said  J.  N. 
with  and  of  the  rape  aforesaid.  That  in  further  pursuance  of  and 
according  to  the  said  conspiracy,  combination,  confederacy  and  agree- 
ment amongst  them  the  said  J.  S.  and  A.  his  wife,  and  J,  W.  and  E. 
W.  had  as  aforesaid,  she  the  said  A.  afterwards,  to  wit,  the  day  and 
year  aforesaid,  at  the  parish  aforesaid  in  the  county  aforesaid,  did 
npon  her  oath  falsely  charge  and  accuse  the  said  J.  N.  before  A.  C, 
Esq.,  when  and  yet  being  one  of  the  justices  of,  &c.,  in  and  for  the 
county  aforesaid,  and  also  to  hear  and  determine  divers  felonies,  tres- 
passes and  other  misdeeds  committed  in  the  said  county,  that  he  the  said 
J.  N.  had  then  lately  before  feloniously  ravished  and  carnally  known 
her  the  said  A.,  violently  and. against  her  will  and  consent.  That  in 
further  pursuance  of  and  according  to  the  said  conspiracy,  combina- 
tion, confederacy  and  agreement  amongst  them,  the  said  J.  S.  and  A. 
his  wife,  and  J.  W.  and  E.  W.  had  as  aforesaid,  she  the  said  A.,  by  the 
name  of  A.  the  wife  of  J.  S.,  afterwards,  to  wit,  at  the  General  Quar- 
ter Sessions  of  the  Peace  of  our  said  lady  the  queen,  holden  at  the 
New  Sf^sions  House,  nn  Clerkenwell  Green,  in  and  for  the  County 
of  Middlesex  aforesaid,  on,  &c.,  before  A.  B.  and  C.  D.,  Esqis.,  and 
others  their  associates,  justices  of  our  said  lady  the  queen,  assigned  to 
keep  the  peace  of  our  said  lady  the  queen  in  and  for  the  county 
aforesaid,  and  also  to  hear  and  determine  divers  felonies,  trespasses 
and  other  misdeeds  committed  in  the  said  county,  did  falsely  exhibit 
a  certain  bill,  commonly  called  a  bill  of  indictment,  against  the  said  J. 
N.,  by  the  name  and  addition  of  J.  N.,  late  of  the  parish  of  C.,  in  the 
County  of  M.,  yeoman,  to  P.  C,  Esq.,  (here  insert  the  names  of 
the  grand  Jurors  to  whom  the  indictment  for  rape  was  exhibited), 
good  and  lawful  men  of  the  said  county,  then  and  there  sworn  and 
charged  to  inquire  for,  &c.,  for  the  body  of  the  said  county;  which 
said  bill  was  by  the  said  jurors  then  and  there  returned  into  the  said 
court,  before  the  justices  of,  &c.,  last  aforesaid,  and  others  their  fel- 
lows aforesaid,  thus  endorsed:  "not  found;"  which  said  bill  is  in 
these  words,  that  is  to  say,  [here  set  out  the  indictment  verbatim, 
and  you  m.ay  then  add,  <'  with  intent  to  obtain  and  acquire  to  them 
the  said  J.  S.  and  A.  his  wife,  and  the  said  J.  W.  and  E.  W.  of  and 
from  the  said  J.  N.,  divers  sums  of  money  for  compounding  the  said 
pretended  felony  and  rape  so  falsely  charged  upon  the  said  J.  N.  as 
aforesaid  ;"  if  this  be  the  fact,  and  that  there  ivill  be  no  difficulty  in 
proving  it);  to  the  great  damage,  &c.,  to  the  evil  example,  &.C.,  and 
against  &.c.     {Conclude  as  in  book  1,  chap.  3). 


394  orrEXCES  against  society. 

Conspiracy  to  charge  a  7nan  villi  receivivg  stolen  goods,  hnoirivg 
them  to  be  stolen,  and  obtaining  money  for  compounding  the  same.{p) 

The  jurors,  &c,,  upon  their  oath  present,  that  A.  B.  and  C.  D.,  both 
of,  &c.,  labourers,  wickedly  and  maliciously  devising  and  intending 
one  E.  F,  unjustly  to  deprive  of  his  good  name  and  character,  and 
also  fraudulently  to  obtain  and  acquire  to  themselves,  of  and  from  the 
said  E.  F.,  divers  sums  of  money,  on,  &c.,  at,  &,c.,  in  the  county 
aforesaid,  did  wickedly,  fraudulently  and  maliciously  conspire,  com- 
bine, confederate  and  agree  among  themselves,  falsely  to  charge  and 
accuse,  and  in  pursuance  of  said  conspiracy,  combination,  confederacy 
and  agreement,  did, then  and  there  falsely  charge  and  accuse  the  said 
E,  F.,  that  he  had  then  lately  before  received  certain  stolen  goods, 
which  had  then  lately  before  been  feloniously  stolen,  taken  and  car- 
ried away,  knowing  them  to  be  stolen;  and  that  they  the  said  A.  B. 
and  C.  D.,  by  divers  threats  and  menaces  of  them  the  said  A.  B.  and 
C.  D.  made  and  uttered  in  pursuance  of  the  said  conspiracy,  combi- 
nation, confederacy  and  agreement  aforesaid,  so  as  aforesaid  had  be- 
tween them  the  said  A.  B.  and  C.  D.,  that  the  said  E.  F,  should  be 
prosecuted  and  punislied  as  a  receiver  of  stolen  goods,  knowing  them 
to  be  stolen,  afterwards,  to  wit,  on  the  said  day  of  in  the 

year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  did  demand, 
receive  and  take  the  sum  of  fifty  dollars  of  liim  the  said  E.  F.,  for  and 
as  a  composition  of  and  agreement  not  to  prosecute  the  said  pre- 
tended otfence,  and  to  discharge  him  the  said  E.  F.  from  all  further 
prosecution  for  the  same. 

Co7tspiracy  to  charge  a  man  ivith  receiving  stolen  goods  and  thereby  ob- 
taining money  for  compounding  the  same,  and.  causing  him  to  lay  out 
a  sum  (f  money  for  the  entertainment  of  the  conspirators  at  one  of 
their  houses.(q) 

That  A.  B.,  late  of,  &c.,  gentleman,  and  C,  D.,  late  of,  &c.,  labourer, 
being  ill-disposed  persons  and  wickedly  devising  and  intending  one 
M.  N.  not  only  of  his  credit  and  good  reputation  unjustly  to  deprive, 
but  also  to  obtain  and  acquire  to  themselves,  of  and  from  the  said  M. 
N.  divers  large  sums  of  money,  on,  &c.,  with  force  and  arms,  at,  &c., 
*  did  amongst  themselves  conspire,  combine,  confederate  and  agree 
falsely  to  charge  and  accuse  tlie  said  M,  N.  witli  having  lately  before 
then  received  stolen  goods.  The  said  A.  B.  and  C.  D.,  afterwards,  to 
wit,  on,  &c.,  according  to  tlie  said  conspiracy,  combinatiouj  confede- 

(p)  Davis' Free.  100. 

In  Com.  V.  Tihbctts,  2  Mass.  53G,  an  inclicfniont  of  a  character  very  similar  to  tliis 
was  sustained.  'I'licre  were,  it  is  true,  scvcrul  addilional  overt  acts,  but  as  they  were  im- 
perfectly  net  out,  they  were  discliarjjed  by  tlie  court  as  surijlusafje. 

When  the  object  of  the  coinbiniitioii  is  to  iii(Het  the  |)i()secutor,  it  is  not  necessary  to 
f.how  with  wh.it  particular  otfence  it  was  intended  to  chary;e  liiiu,  but  it  will  suHiec  to  say 
that  tliey  conspired  to  indict  liim  of  a  crime  [Hinishable  by  the  laws  of  the  country,  and 
then  it  ni;iy  be  allerred  tiiat  tliey,  accordinjr  to  the  conspiracy,  did  falsely  indict  him  ;  R.  v. 
Spra(r<r(;,  2  Hurr.  1)1*3  :  nor  is  it  necessary  to  aver  that  the  man  is  innocent  of  the  otlenee; 
II.  t).  Kinnersly,  1  Str.  103;  for  he  sliail  be  presumed  to  be  innocent  until  the  conliarj 
ttjipear ;  hcc  R.  b.  Best,  1  Salk.  174 ;  U.  v.  Spra-rKe,  2  Hurr.  993. 

iq)  Stark.  C.  P.  4(i8. 


CONSPIRACY.  395 

racy  and  agreement  between  themselves  before  liad  as  aforesaid, 
falsely,  wickedly  and  for  the  sake  of  hicre  and  gain,  did  in  the  pre- 
sence and  hearing  of  divers  persons  charge  and  accuse  him  the  said 
M.  N.,  that  he  the  said  M.  N.  had  bought  hats  that  were  stolen, 
knowing  them  to  have  been  stolen,  and  that  they  the  said  A.  B,  and 
C.  D.  did  then  and  there  falsely  pretend  and  aflhm  to  the  said  M.  N. 
that  a  bill  of  indictment  had  been  found  at  the  general  session  of  the 
peace,  holden  at  the  Quarter  Sessions  in  and  for  the  said  county,  on, 
&c.,  then  last,  against  the  said  M.  N,  for  receiving  stolen  goods,  know- 
ing the  same  to  have  been  stolen  ;  whereas,  in  truth  and  in  fact  there 
was  not  at  the  time  of  such  charge  and  accusation,  nor  at  any  time 
before  or  since,  any  bill  or  bills  of  indictment  whatsoever  in  any  man- 
ner found  against  the  said  M.  N.,  for  the  said  supposed  offence  so 
falsely  cjiarged  upon  him,  or  for  any  such  like  crime;  and  whereas, 
in  truth  and  in  fact  the  said  M.  N.  was  never- guilty  of  the  said  sup- 
posed offence  or  any  other  offence  of  that  kind. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  by  the  said  false  accusations  and  by  divers  threats,  menaces 
and  allegations  of  them  the  said  A.  B.  and  C.  D.  then  and  there  ut- 
tered and  made,  that  he  the  said  M.  N,  should  be  transported  into 
parts  beyond  the  seas  for. the  said  pretended  offence,  they  the  said  A. 
B.  and  C.  D.  did  then  and  there  demand,  receive  and  take  of  the  said 
M.  N.  one  piece  of  gold  coin,  of  the  proper  coin  of  this  realm,  called 
a  guinea,  for  and  as  a  compensation  and  agreement  of  the  said  pre- 
tended offence,  and  to  discharge  the  said  M.  N.  from  all  further  pro- 
secution for  the  same;  and  they  the  said  A.  B.  and  C.  D.  did  also 
then  and  there,  by  the  false  and  wicked  pretences  aforesaid,  unlaw- 
fully cause  and  procure  the  said  M.  N.  to  expend  and  lay  out,  and 
the  said  M.  N.  did  expend  and  lay  out  twenty-three  shillings,  of  law- 
ful money  of  Great  Britam,  at  the  dwelling  house  of  the  said  A.  B., 
in  wine  and  other  liquors,  in  the  company  and  for  the  entertainment 
of  them  the  said  A.  B.  and  C.  D.,  to  the  great  damage,  infamy  and 
disgrace  of  the  said  M.  N.,  and  against,  &c.  (Conclude  as  in  book 
1,  chap.  3). 

Conspiracij  to  charge  a  man  with  an  unnatural  crime,  and  thereby  to 
obtain  moneij.{r) 

[Commencement  as  in  the  last  precedent  to  the  *).  Did  amongst 
themselves  conspire,  combine,  confederate  and  agree  falsely  to  charge 
and  accuse  the  said  M.  N.,  that  he  the  said  JM.  N.  then  lately  before 
had  committed  the  crime  of  sodomy,  commonly  called  buggery,  with 
him  the  said  A.  B.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present,  that  the  said  A.  B.  and  C.  D.,  afterwards,  to 
wit,  on,  &c,,  at,  &c.,  according  to  the  conspiracy,  combination,  con- 
federacy and  agreement  between  them  as  aforesaid  had,  falsely,  un- 
lawfully and  wickedly  did  charge  and  accuse  the  said  M.  N.,  that  he 
the  said  M.  N.  then  lately  before  had  committed  the  crime  of  sodomy, 
commonly  called  buggery,  with  him  the  said  A.  B.;  whereas, in  truih 

(r)  Stark.  C.  P.  469. 


396  OFFENCES  AGAINST  SOCIETY. 

and  in  fact  the  said  M.  N.  was  never  guilty  of  the  said  crime,  or  of 
any  crime  of  the  Uke  nature ;  and  that  they  the  said  A.  B,  and  C.  D., 
ill  pursuance  of  and  according  to  the  conspiracy,  combination,  con- 
federacy and  agreement  between  them  as  aforesaid  had,  afterwards, 
to  wit,  on,  &c.,  at,  &c.,  unlawfully,  wickedly  and  unjustly  did  obtain, 
acquire  and  get  into  their  hands  and  possession  the  sum  of  five 
pounds  of  lawful  money  of  Great  Britain,  of  the  moneys  of  the  said 
M.  N.,  of  and  from  the  said  M.  N.,  under  the  aforesaid  false  colour 
and  pretence,  and  also  under  colour  and  pretence  of  concealing  the 
said  supposed  crime,  and  for  not  prosecuting  the  said  M.  N.  for  the 
same,  to  the  great  damage  of  the  said  M.  N.,  and  against  the  peace, 
&.C.     [Conclude  as  in  book  1,  chap.  3). 

Second  count 

That  the  said  A.  B.  and  C.  D.,  on,  &c.,  with  force  and  arms,  at, 
&c.,  wickedly,  unlawt'ully  and  for  lucre  and  gain  sake,  did  threaten 
the  said  M.  N.,  that  unless  he  the  said  M.  N.  would  give  them  the 
said  A~  B.  and  C.  D.  five  pounds,  they  the  said  A.  B.  and  C.  D.  would 
swear  sodomy  (meaning  the  detestable  crime  of  sodomy,  called  bug- 
gery), against  liim  the  said  M.  N. ;  whereas,  in  truth  and  in  fact  the 
said  M.  N.  v/as  never  guilty  of  the  crime  of  sodomy,  or  of  any  sucli 
crime.  And  that  the  said  A.  B.  and  C.  D.,  afterwards,  to  wit,  on  the 
same  day  and  year  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  by  means  of  the  threatening  aforesaid,  unlawfully,  wickedly 
and  injuriously  did  obtain,  acquire  and  get  to  themselves,  of  and  from 
the  said  M.  N.,  five  pounds  of  lawful  money  of  Great  Britain,  of  the 
moneys  of  the  said  M.  N.     {Conclude  as  in  book  1,  chap.  3). 

Conspiracy  to  extort  money  generally  by  criminal  •prosecution.  First  count, 
charging  a  conspiracy  to  extort,  by  commencing  and  continuing  a  pj-o- 
secution.{s) 

That  the  defendants,  intending  unlawfully,  fraudulently  and  deceit- 
fully to  extort,  obtain  and  procure  of  and  from  the  prosecutor  a  large 
sum  of  money  for  their  own  use,  on,  &c.,  at,  &c.,  did  corruptly  and 
unlawfully  conspire  together  to  extort,  obtain  and  procure  of  and 
from  the  prosecutor,  a  large  sum  of  money  for  their  use,  and  in  order 
to  extort,  obtain  and  procure  the  same,  did  corru}nly  and  unlawfully 

(«)  R.  p.  Hollingborry,  6  D.  &  R.  345.  Motion  for  a  new  trial  and  in  arrest  of  judg- 
ment, was  refused  after  a  eotiviction. 

Abbott  C.  J.:  "  Tlie  indietiiunt,  in  my  opinion,  most  clearly  eliarges  a  legal  offence, 
and  an  attempt  to  commit  it  by  illegal  [neans.  I  consider  tiie  very  term  'extort,'  neces- 
sarily to  ifuply  the  adoption  of  illegal  means;  tlie  tliird  count,  tlieretbrc,  is  undoubtedly 
good,  because  that  states  only  that  tiie  defendants  unlawfully  conspired  to  extort  money 
from  the  jtrosecutor  by  offering  to  su[)press  an  indictment  pending  against  him,  if  he  would 
give  them  a  sum  of  money  as  a  consideration  for  so  doing.  The  first  two  counts  certainly 
charge  that  the  defendants  conspired  falsely  to  exhibit  indictments  against  the  i)rosecntor. 
If  that  must  be  construed  to  mean  that  they  conspired  to  exhibit  false  indictments  against 
liim,  there  is  a  variance,  because  the  jury  have  expressly  found  tiiat  llie  indictments  were 
not  false.  But,  as  it  seems  to  me,  that  aliegMtion  may  fairly  be  construed  to  mean,  and  I 
believe  liiat  it  really  did  incan  that  the  detimdants  falsely  exhibited  the  indictments  ;  that 
is,  exliibiled  them  not  tor  the  purposes  of  justice,  but  for  false  and  wicked  purjjoses  of  their 
own;  which,  whetlier  true  or  not,  is  an  immaterial  allegation,  because  tlie  (|uestion  was, 
whether  they  exhibited  tirem  illegally  with  an  illegal  intent,  and  for  an  illegal  purpose, 
which  the  jury,  after  full  consideration,  have  found  that  they  did." 


cO(\spIracy.  397 

conspire  to  indict  the  prosecutor  for  having  kept  a  common  gaming 
house,  kc.  That  deCenclaiits,  in  Turtherance  of  their  conspiracy,  after- 
wards, to  wit,  on,  &.C.,  at,  &c.,  at  the  Quarter  Sessions,  &c.,  did  falsely 
exhibit  and  cause  to  be  exhibited,  a  certain  bill  of  indictment  against 
the  prosecutor,  and  afterwards,  in  pursuance,  &lc.,  did  corruptly,  wil- 
fully and  wickedly  procure  and  cause  the  said  bill  of  indictment  to  be 
returned  a  true  bill,  and  that  defendants,  in  further  pursuance,  &c., 
afterwards,  to  wit,  on,  &c.,  at,  &c.,  in  the  Court  of  K.  B.,  did  falsely 
•exhibit  and  cause  to  be  exhibited,  a  certain  bill  of  indictment  against 
the  prosecutor,  and  did  afterwards,  in  pursuance,  &c.,  corruptly,  wil- 
fully and  wickedly  procure  and  cause  the  said  bill  of  indictment  to  be 
returned  a  true  bill.  That  the  defendants,  in  pursuance,  &c^,  after- 
wards, to  wit,  on,  &c.,  at,  &c.,  did  unlawfully  and  wilfully  endeavour 
to  obtain  and  procure  of  and  from  the  prosecutor,  a  large  sum  of 
money  as  and  for  a  consideration  or  recompense  to  them  for  com- 
promising and  suppressing  the  said  indictments,  and  giving  up  the 
further  prosecution  thereof. 

Second  count.  Charging  a  prosecution  already  commenced,  and  a  con- 
spiracy to  extort  money  by  proposing  to  suppress  it. 

The  defendants  preferred  an  indictment  at  the  Quarter  Sessions 
against  the  prosecutor  for  keeping  a  common  gaming  house,  which 
being  removed  into  the  Court  of  K.  B,  and  depending  there,  defend- 
ants did  unlawfully  and  wickedly  conspire  to  extort,  &c.,  of  and  from 
the  prosecutor  a  large  sum  of  money,  and  in  pursuance,  &c.,  did  un- 
lawfully propose  to  the  prosecutor  to  suppress  the  indictment,  and  to 
withhold  certain  evidence  which  they  had  and  could  bring  forward 
to  prove  that  the  prosecutor  had  unlawfully  kept  a  common  gaming 
house,  if  he  would  give  and  pay  to  them  a  large  sum  of  money  for 
their  use. 

Third  count.  Charging  a  conspiracy  to  extort  by  promising  to  com- 
promise a  then  pending  prosecution. 

That  defendants  wickedly  intending  to  extort,  &c.,  of  and  from  the 
prosecutor,  divers  large  sums  of  money,  did  unlawfully  and  wickedly 
conspire  to  extort,  obtain  and  procure  of  and  from  the  prosecutor 
divers  large  sums  of  money,  and  in  pursuance  of  their  conspiracy, 
did  propose  to  compromise  and  suppress  a  certain  indictment  before 
preferred  against  the  prosecutor  by  defendant  B.,  and  then  pending 
in  the  Court  of  K.  B.,  and  a  certain  other  indictment  before  preferred 
against  the  prosecutor  by  defendant  S.,  then  also  pending  in  the  Court 
of  K.  B.,  and  to  prevent  further  proceedings  being  taken  against  the 
prosecutor  thereon,  if  the  prosecutor  would  give  and  pay  to  defend- 
ants a  large  sum  o(  money  as  a  consideration  and  recompense  to 
them  for  compromising  and  suppressing  the  last  mentioned  indict- 
ments, and  preventing  any  furtlier  proceedhigs  being  taken  against 
the  prosecutor  thereon.(5,j) 

(ss)  This  form  is  given  merely  in  skeleton,  and  can  only  be  of  use  as  sucli. 
34 


398  OFFENCES  AGAINST  SOCIETY. 

Conspiracy  to  impoverish  the  prosecutor,  and  hinder  him  from  exer- 
cising his  lau-ful  trade  as  a  tailor ;  with  an  overt  act,  setting  forth  the 
consummation  of  the  conspiracy.if) 

That  F.  E.  and  six  others,  devising  and  intending  unjustly,  unlaw- 
fully and  by  indirect  means  to  impoverish  one  H.  B.,  and  to  reduce 
to  beggary  and  want  the  said  H.  B.,  and  to  hinder  and  deprive  the 
said  H.  B.  from  using  and  exercising  his  trade  and  business  as  a 
tailor,  which  he  then  and  there  used  and  exercised,  on,  &c.,  at,' 
&c.,  wrongfully,  fraudulently,  maliciously  and  unlawfully  did  confe- 
derate, conspire,  combine  and  agree  amongst  themselves  by  in- 
direct means  to  impoverish  the  said  H.  B.,  and  to  deprive  and 
hinder  him  from  following  and  exercising  his  aforesaid  trade  or 
business  of  a  tailor;  and  the  said  F.  E.,  &c.,  in  pursuance  of  and  ac- 
corditig  to  the  unlawful  conspiracy,  combination  and  agreement  afore- 
said, on,  &c.,  at,  &c., indirectly,  wrongfully,  unlawfully,  maliciously  and 
unjustly  did  prevent  and  huider  the  said  H.  B.  from  following  his 
aforesaid  trade  or  business  in  Liverpool  aforesaid,  and  thereby  did 
then  and  there  greatly  impoverish  the  said  H.  B.,  to  the  great 
damage,  &c. 

Conspiracy  to  defame  a  public  officer.     First  count,  conspiracy  to  de- 
fame by  charging  corrupt  conduct.{u) 

That  A.  B.,  &c.,  together  with  certain  other  evil  disposed  persons 
whose  names  to  the  said  inquest  are  as  yet  unknown,  on,  &c.,  at,  &c., 
wickedly  and  maliciously  devising  and  intending  to  bring  contempt, 
discredit  and  dishonour  on  the  administration  of  public  justice,  &,c., 
and  to  deprive  C.  D.,  Esq.,  then  and  tliere  liolding  the  office  and  ex- 

(()  On  this  count  tliere  was  a  verdict  of  guilty  in  Rex  v.  Eccles,  3  Dougl.  337.  (Re- 
poitcd  also  in  1  Lcncii  276;  and  13  East  230,  n).  The  indictment  contained  another  count 
not  materially  diHirent,  and  accordinjj  to  the  report  in  Douglass,  was  thus  disposed  of — 
C'hambrc  moved  an  arrest  of  judgnient  on  two  grounds.  1.  The  charge  is  too  general ; 
Hawk.  b.  '2,  c.  26,  s.  51) ;  The  King  ».  How,  B.  K.,  E.;  12  Geo.  I. ;  1  Str.  699  ;  'Ihe  King 
T.  Munot,  B.  R.,  H.;  )3  Geo.  I.;  2  Str.  1 127;  14  Vin.  386.  (Willcs  J.,  referred  to  The 
King  0.  Kinnersly,  B.  R.,  T. ;  5  Geo.  1.;  1  Str.  193).  It  must  be  a  conspiracy  to  do 
something.  (Builer  J.:  Here  the  act  intended  is  stattd).  It  is  only  tlie  consequence  and 
not  the  means  that  is  stated.  (Lord  Mansfield  :  Be  the  means  what  they  may,  if  it  be  in 
consequence  of  a  consjiiracy,  it  is  criminal).  The  issue  is  not  well  joined,  for  it  does 
not  appear  that  any  of  the  defctidriiits  but  Eccles  have  pleaded. 

Lord  Mansfield:  "The  conspiracy  is  to  prevent  Booth  from  working,  the  consequence 
is  poverty.  But  tlie  conspiracy  and  consequence  are  stated  ;  but  it  is  objected  that  there 
is  no  allegation  of  the  means.  Such  allegation  is  unnecessary.  The  latter  cases,  and 
especially  the  King  v.  Kinneisly,  are  very  strong.  As  to  the  objection  on  the  issue, "the 
record  goes  on  and  says,  'they  and  each  of  them.'" 

Builer  J.:  "The  indictment  stall  s  more  than  is  sufficient  in  alleging  that  the  defend- 
ants cons[)ir(d  '  by  indirect  means.'  The  means  are  matter  of  evidence.  If  the  indict- 
ment had  state!  lliat  tiicy  conspired  to  prevent  Booth  from  carrying  on  his  trade,  it  would 
have  been  sufficient:  '  hy  indirect  nuMUs'  is  surplusage. 

"As  to  the  issue,  it  does  not  appear  by  this  record  that  any  of  the  defendants  let  judg- 
ment  gr)  by  default.  'I'hcrefbre  tiie  court  catmot  go  into  the  matter,  and  the  issue  is  joined, 
thoui/h  in  a  very  shjvcnly  maimer.  If  any  of  the  defendants  have  in  fact  let  judgment  go 
by  default,  and  are  injured  by  this  niaiii.er  of  eulering  the  issue,  they  have  their  remedy 
against  the  clerk  in  tlie  crown  office." 

iMotion  deni<:d. 

(n)  Com.  V.  Strafford,  Sup.  Ct.  Pa.,  Dec.  T.,  1845,  No.  39. 


cojJspiKAcr.  300 

ercising  the  daties,  {setting  fortU  the  office),  of  his  good  name,  fame 
and  reputation,  as  well  as  unjustly  to  subject  liim  the  said  C.  D.  to 
pains  and  penalties,  did  among  tliemselves  conspire,  combine,  confe- 
derate and  agree  together  to  vilify  and  defame  the  said  C.  D.,  and 
falsely  and  maliciously  to  charge  and  accuse  him  the  said  C.  D.  with 
having  been  guilty  of  great  corruption  and  other  misdemeanors  in 
his  said  office,  and  with  having  at  divers  times  in  his  said  office  and 
in  the  exercise  of  the  said  duties,  corruptly,  unlawfully  and  wickedly 
received  divers  large  bribes  and  sums  of  money  and  other  valuable 
things,  and  with  having  in  consideration  of  such  bribes,  moneys 
and  other  valuable  things,  unlawfully,  corruptly  and  wickedly  retard- 
ed, checked,  prevented,  falsified  and  frustrated  the  due  course  of  pub- 
lic justice  of  the  said  commonwealth  in  the  said  city  and  county, 
to  the  great  damage,  disgrace  and  infamy  of  the  said  C.  D.,  to  the 
great  discredit  and  dishonour  of  the  administration  of  public  justice 
as  aforesaid,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count.     Same  as  first,  setting  out  the  matter  charged. 

That  the  said  A.  B.,  on  the  day  and  year  aforesaid,  at  the  county 
aforesaid  and  within  the  jurisdiction  aforesaid,  together  with  divers 
other  evil  disposed  persons  whose  names  are  to  this  inquest  as  yet 
unknown,  wickedly  and  maliciously  with  them  devising  and  intend- 
ing to  bring  contempt,  discredit  and  dishonour  on  the  administration 
of  public  justice  in  the  said  city  and  county,  as  well  as  to  deprive  the 
said  C.  D.,  Esq.,  holding  the  office  and  exercising  the  duties  hereinbe- 
fore specified,  of  his  good  name,  fame  and  reputation,  as  well  as  un- 
justly to  subject  him  the  said  C.  D.  to  high  pains  and  penalties,  did 
among  themselves  conspire,  combine,  confederate  and  agree  together 
falsely  to  charge  and  accuse  the  said  C.  D.,  Esq.,  then  in  the  office  and 
in  exercise  of  the  duties  hereinbefore  specified,  with  having,  in  a  case 
then  shortly  before  pending,  to  wit,  &c.,  {here  state  the  matter 
charged);  to  the  great  damage,  infamy  and  disgrace  of  the  said  C.  D., 
to  the  great  discredit  and  dishonour  of  the  administration  of  public 
justice  as  aforesaid,  and  against,  &.c.     {Conclude  as  in  book  1,  chap. 

Third  count.  By  charging  the  prosecutor  with  having  been  guilty  of 
corruption  in  a  particidar  case. 

That  the  said  A.  B.,  on  the  day  and  year  aforesaid,  at  the  county 
aforesaid  and  within  the  jurisdiction  aforesaid,  together  with  divers 
other  evil  disposed  persons  whose  names  are  to  this  inquest  as  yet 
iniknown,  wickedly  and  maliciously  with  them  devising  and  intend- 
ing to  bring  contempt,  discredit  and  dishonour  on  the  administration 
of  public  justice  in  the  said  city  and  county,  as  well  as  to  deprive  C. 
D.  holding  the  office  and  exercising  the  duties  hereinbefore  specified, 
of  his  good  name,  fame  and  reputation,  as  well  as  unjustly  to  subject 
the  said  C.  D.  to  high  [).ains  and  penalties,  did  among  themselves  con- 
spire, combine,  confederate  and  agree  together  falsely  to  charge  and 
accuse  the  said  C.  D.,  when  in  the  office  and  in  the  exercise  of  the 
duties  hereinbefore  specified,  with  having,  in  a  case  then  shortly  be- 
fore pending,  to  wit,  a  case  in  which  one  K.  was  defendant,  corruptly, 
wickedly  and  unlawfully  received  a  large  sum  of  money  as  a  bribe, 
to  wit,  the  sum  of  seventy-five  dollars;  to  the  great  damage,  infamy 


400  OFFENCES  AGAINST  SOCIETy. 

and  disgrace  of  the  said  C.  D.,  to  tlie  great  discredit  and  dishonour  of 
the  administration  of  pubhc  justice  as  aforesaid,  and  against,  &c. 
{Conchfde  as  iii  book  1,  chajh  3). 

Covspiracy  to  indict  a  person  for  a  cajntal  offence,  uho  iras  acquitted 
on  the  trial.{v) 

That  J.  S.,  late  of,  &c.,  and  M.  S.,  late  of,  &c.,  being  persons  of  an 
evil  mind  and  wicked  dis])osition,  and  devising  and  intending  to  de- 
prive one  W.  G.  of  his  good  name,  fame,  credit  and  reputation,  and 
also  to  subject  the  said  W.  G.,  without  any  just  cause,  to  the  loss  of  his 
life  and  forfeiture  of  his  goods  and  chattels,  lands  and  tenements,  on, 
&c.,  at,  &c.,  aforesaid,  wickedly  and  mahciously  did  conspire,  combine 
and  agree  amongst  themselves  to  indict  and  cause  to  be  indicted  the 
said  W.  G.,  for  a  crime  or  offence  liable  by  the  laws  of  this  kingdom 
to  be  punished  capitally, (^^)  and  to  prosecute  the  said  W.  G.  upon 
such  indictment.  And  the  jurors,  &c.,  do  further  present,  that  the 
said  J.  S.  and  M.  S.,  according  to  the  conspiracy,  combination  and 
agreement  aforesaid,  between  them  as  aforesaid  before  had,  after- 
wards, to  wit,  on,  &c.,  at  the  session  of  Oyer  and  Terminer  of  our 
said  lord  the  king,  then  holden  at  New  Sarum  aforesaid,  in  and  for 
said  County  of  Wilts,  before  the  honourable  Sir  R.  A.,  knight,  one  of 
the  barons  of  his  majesty's  Court  of  Exchequer,  and  E,  W.,Esq.,  one 
of  his  said  majesty's  sergeants  at  law,  and  others  their  fellows,  justices 
of  our  said  lord  the  king,  assigned  by,  &,c.,  {here  recite  the  commis- 
sion as  in  the  last  precedent),  to  inquire  of  all  crimes  by  the  oath  of 
N.  P.,  Esq.,  [the  num.es  of  the  grand  jiii^ors),  good  and  lawful  men 
of  the  county  aforesaid,  then  and  there  sworn  and  charged  to  inquire 
for  our  said  lord  the  king  for  the  body  of  the  said  county,  falsely, 
wickedly  and  maliciously,  and  without  any  reasonable  or  probable 
cause,  did  indict  and  cause  to  be  indicted,  the  aforesaid  W.  G.  by  the 
name  of  W.  G.,  late  of,  &c.,  bookseller  and  stationer,  for  that,  &c., 
{here  recite  the  indictment).  And  the  jurors  of  this  inquisition  on 
their  oaths  aforesaid,  further  present,  that  the  said  J.  S.  and  M.  S., 
according  to  the  consj)iracy,  combination  and  agreement  between 
them  as  aforesaid  before  fiad,  afterwards,  to  wit,  on  the  said,&c,,  and 
on  divers  other  days  and  times  afterwards,  at  New  Sarum  aforesaid 
in  the  county  aforesaid,  the  said  W.  G.,  upon  the  indictment  afore- 
said, wickedly  and  maliciously  did  prosecute,  until  the  said  W.  G. 
afterwards,  to  wit,  at  the  delivery  of  the  gaol  of  our  said  lord  the  king, 
of  his  said  County  of  W,,  holden  at  New  Sarum  aforesaid,  on,  &c., 
l)efore  the  lionoural)le  If.  L.,  Esq.,  one  of  the  barons  of  his  said  ma- 
jesty's Court  of  Exchequer,  W.  H.,  Esq.,  sergeant  at  law,  and  others 
their  fellows,  justices  of  our  said  lord  th.e  king,  duly  assigned  to  deli- 
ver his  said  gaol  of  the  said  County  of  W.,  of  the  prisoners  therein 
being,  by  a  certain  jury  of  the  county,  by  due  form  of  law  was  ac- 
quitted of  the  premises  aforesaid  in  the  said  indictment  above  speci- 


(v)  This  count  was  Rustoincd  in  3  Burr.  903,  sec  Cliit.  C.  L.  1174,  and  approved  by  the 
Supreme  Court  of  AIul)ama  in  State  r.  C-awood,  2  Stew,  360.     See  anLe,  p.  3U2. 
(w)  ThiH  is  Bufrieiciil;  2  Burr.  yiJ3. 


CONSPIRACV.  401 

fied,  by  reason  of  which  said  false  and  malicious  prosecutions  of  the 
said  VV.  G,  by  tliem  the  said  J.  S.  and  M.  S.,  in  form  aforesaid,  he 
the  said  VV,  G.  was  compelled  to  expend  divers  sums  of  money,  and 
to  undergo  divers  hardships  of  body,  in  his  defence  to  the  prosecu- 
tion aforesaid,  to  the  great  damage,  disgrace  and  infamy  of  the  said 
W.  G.,  to  the  evil  example,  &c.,  and  against,  &c.  {^Conclude  as  in 
book  1,  chap.  3). 

Conspiracy  to  induce  a  material  witness  to  suppress  his  testimony.{x) 

The  jurors,  &c.,  upon  their  oath  present,  that  A.  B.,  C.  D.  and  E, 
F.,  all  of,  &c.,  labourers,  being  evil  disposed  persons  and  well  knowing 
that  a  certain  bill  of  indictment  for  felony  was  intended  and  about 
to  be  preferred  against  one  G.  H.,  and  that  one  I.  J.  was  a  material 
witness  in  support  of  such  bill  of  indictment,  on,  &c.,  at,  &,c.,  in  the 
county  aforesaid,  did  unlawfully  and  wickedly  conspire,  combine, 
confederate  and  agree  together  to  induce  the  said  I.  J.  to  suppress 
the  evidence  he  knew,  and  which  was  within  his  knowledge  touch- 
ing the  said  felony,  and  to  withdraw  and  conceal  himself,  in  order  to 
prevent  his  being  examined  as  a  witness  in  support  of  said  bill  of 
indictment,  so  as  aforesaid  intended  to  be  preferred,  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Same  as  last,  in  another  shape. 

The  jurors,  &c.,  upon  their  oath  present,  that  at  the  time  of  the 
conspiracy,  combination,  confederacy  and  agreement  hereafter  men- 
tioned, one  A.  B.  was  a  prisoner  in  the  commonwealth's  gaol,  situated 
in  B.,  in  the  county  aforesaid,  lawfully  committed  and  charged  with 
a  certain  felony  before  that  time  by  him  committed,  and  a  certain 
indictment  was  about  to  be  preferred  against  liim  the  said  A.  B.  for 
the  said  felony,  and  that  one  C.  D.  was  a  material  witness  in  support 
of  such  bill  of  indictment ;  and  that  E.  F.  and  G.  H.,  both  of,  &c.,  la- 
bourers, well  knowing  the  premises,  and  contriving  and  intending  to 
prevent  the  due  course  of  law  and  justice,  and  to  prevent  the  said 
C.  D.  from  attending  as  a  witness  in  support  of  said  bill  of  indictment 
about  to  be  preferred  as  aforesaid,  on,  &c.,  at,  &c.,  and  while  the  said 
A.  B.  was  a  prisoner  in  the  said  prison  as  last  aforesaid  for  the  said 
felony,  wilfully  and  corruptly  did  conspire,  combine,  confederate  and 
agree  among  themselves  to  induce  the  said  C.  D.  to  suppress  the  evi- 
dence he  knew  concerning  said  felony,  and  to  prevent  the  said  C.  D. 
from  attending  to  give  evidence  as  a  witness  in  support  of  said  bill  of 
indictment  against  the  said  A.  B.,  so  about  to  be  preferred  against 
him  as  aforesaid.     (^Conclude  as  in  book  1,  chap.  3). 

(x)  See  3  Chit.  C.  L.  1156;  1  Salk.  174;  2  Ld.  Raym.  1167;  Davis'  Prec.  109. 


34' 


402  OFFENCES  AGAINST  SOCIETY. 

^ 

CHAPTER  III. 

NUISANCE. 

General  frame  of  indictment. 

That  A.  B.,  late  of,  &c.,  on,  &c.,  and  on  divers  days  and  times 
between  tiiat  day  and  the  taking  of  this  inquisition, (f/)  at,  &c.,  near  to 
tlie  dvvelHng  houses  of  divers  citizens  of,  &c.,  and  also  to  divers  pub- 
lic streets  of  said,  &c.,  did,  &c.,  {statini^  the  particular  offence),  on, 
&c.,  and  on  the  other  days  and  times  aforesaid,  there,  &c.,  by  reason 
whereof,  [state  the  jntrticular  annoyance  as  iji  succeeding  forms), 
to  the  great  damage  and  common  nuisance(6)  not  only  of  all  the  in- 

(o)  This  averment,  if  unsupported  by  evidence,  is  surplusage.  It  is  introduced,  how- 
ever, in  all  cases  where  the  nuisance  continues,  and  the  object  of  it  is  to  enable  the  court 
to  give  judgment  of  abatement;  13  East  l(i4;  8  T.  R.  142;  2  Stra.  6b6 ;  3  Chit.  C.  L.  608. 

(i)  The  conclusion  must  always  be  "to  the  common  nuisance."  Thus  an  indictment 
for  a  nuisance,  which  ends  "to  the  common  nuisance  of  divers  of  the  commonwealth's 
citizens,"  is  insufficient.  It  should  be  laid  to  the  common  nuisance  "of  all  the  citizens  of 
the  commonwealtli,  residing  in  the  neighbourhood,"  or  "of  all  citizens,  &c.,  residing,  <&c., 
and  passing  thereby;"  Com.  v.  Furis,  5  Hand.  691.  In  Pennsylvania  it  is  admissible  to 
conclude  to  the  common  nuisance  of  the  citizens  of  the  Commonwealth  of  Pennsylvania  ; 
Graffins  v.  Com.,  3  Pcnn.  R.  502.  On  the  same  principle,  an  indictment  tor  a  nuisance  in 
frequenting  houses  of  ill  fime,  must  charge  that  "the  defendant,  knowing  the  house  to  be 
a  house  of  ill  fame,  did  openly  and  notoriously  haunt  and  frequent  the  same;"  Brooks  v. 
State,  2  Yerg.  482.  But  an  allegation  in  an  indictment,  that  certain  facts  charged  were 
"to  the  common  nuisance  of  all  the  good  citizens  of  the  state,"  will  not  make  it  a  good 
indictment  for  a  common  nuisance,  unless  these  facts  be  of  sucli  a  nature  as  may  justify 
tiiat  conclusion  as  one  of  law  as  well  as  of  fact;  l"om.  v.  Webb,  6  H:ind.  726;  Slate  v. 
Baldwin,  1  Dev.  &.  Bat.  195.  Thus,  where  it  was  charged  that  the  defendants  assembled 
at  a  jHiblic  ])lace,  and  profanely  and  with  a  loud  voice  cursed,  swore  and  quarreled,  in  the 
hearing  of  divers  persons  then  and  there  assembled,  whereby  a  certain  singing-school  was 
broken  up  and  disturbed,  ad  commune  iiocumeutum,  it  was  held  that  the  indictment  could  not 
be  sustained  as  one  for  a  common  rmisance;  State  v.  Baldwin,  1  Dev.  &  Bat.  1!)5.  It  is  not 
enough  in  an  indictment  for  a  public  nuisance  in  daniming  up  and  stagnating  the  waters 
of  a  creek,  whereby  the  air  is  corru[)ted  and  inlected,  and  sends  forth  noisome  and  un- 
wholesome smells,  to  lay  it  to  the  cotrimon  nuisance  of  "all  the  citizens  of  the  common- 
wealth, not  only  residing  and  inhabiting  there,  but  also  going,  returning,  passing  and  re- 
passing by  tlic  same,"  nor  "to  the  common  nuisance  of  all  the  citizens  of  the  common- 
wealth ;"  but  to  maintain  a  public  prosecution  tor  a  nuisance,  it  is  necessary  to  allege  and 
prove  that  the  obstructions  placed  in  the  creek,  i)roduce  a  stagnation  of  the  waters,  and 
corrujH  the  air  in  or  near  a  j)ublic  highway,  or  in  some  other  place  in  which  the  public 
have  a  s[)ecial  interest;  Com.  v.  Webb,  6  Rand.  726. 

Before  considering  the  precedents  of  indictments  for  nuisance  (in  ohslnicting,  encroach- 
infr  071  or  fivnoyiiinr  the  public  in  usiiip  jivhlir  liiis/nrayn,  hridiics,  fiaihouis,  water-courses  or 
riavifraUe  rivers),  the  general  character  of  the  offence  will  be  exan)in(d.  All  permanent 
obstructions  to  the  passage  of  the  citizens  of  the  state  over  public  Iiigliwa3's  or  bridges  are 
nuisances  for  which  an  indictment  will  lie,  and  it  will  even  be  no  deiirice  that  the  highway 
was  oficncd  by  an  erroneous  judgment  of  the  county  court ;  State  v.  Spainhour,  2  Dev.  & 
Bat.  547.  Thus,  to  place  logs  of  timber  upon  them  ;  to  erect  a  gate  across  a  road  without 
jnMii<nu/ri;il  usage  to  do  so,  even  it  it  is  k(  |)t  open;  ami  to  suffer  a  way  to  be  incommoded 
by  t]((s  hanging  over  it,  ace  indictable  oiVenees ;  Hawk.  b.  1,  c.  75,  s.  !) ;  s(  c  Viner's 
AbridguK  111,  lit  Nuisance  (C).  And  though  it  has  been  holden  that  no  indictment  will 
lie  for  distributing  lawful  handbills  on  the  footway  in  the  street,  to  the  inconvenience  of 


NUISANCE.  403 

Imbitanls  of  the  said  but  of  all  other  good  citizens  of  the  said 

commonwealth,  thence,  {or  if  the  nuisance  be  on  a  highway,  say  on 
said  highway),  returning,  passing,  repassing,  riding  and  labouring, 
&.C.     (Conclude  as  in  book  1,  chap.  3). 

the  passengers;  R.  ».  Sermon,  1  Burr.  R.  516;  yet  it  seems  now  to  be  well  established  that 
every  unauthorized  obstruction  of  a  highway  is  a  misdemeanor;  R.  v.  Cross,  3  Cam|)b.  227. 
'I'hus,  a  wagoner  habitually  keeping  his  wagon  standing  for  hours  to  unload,  R.  v.  Russcl, 
8  East  R.  427;  a  constable  collecting  a  crowd  by  a  sale,  Com.  v.  Milliman,  13  S.  <fc  R. 
403 ;  a  coachmaster  plying  for  passengers,  and  allowing  his  coach  to  remain  in  the  street 
more  than  a  reasonable  length  of  time  to  take  up  and  set  down  passengers,  R  v.  Cross,  2 
(■ampb.  224;  an  auctioneer  placing  goods  on  the  pavement  intended  by  him  for  sale, 
I'assmore's  case,  1  S.  &  R.  217;  or  the  owner  of  a  house  allowing  it  to  remain  under  re- 
pair, and  obstructing  the  public  passage  for  a  longer  time  than  is  necessary,  R.  ».  Jones,  3 
Campb.  330;  will  be  respectively  indictable  for  nuisances.  So  where  the  defend  ints,  who 
were  proprietors  of  a  distillery  in  the  (^ity  of  Brooklyn,  wore  in  the  habit  of  delivering 
grains  remaining  after  distillation,  called  slops,  by  passing  them  through  pipes  to  the  pub- 
lic street  opposite  their  distillery,  where  they  were  received  into  casks  standing  in  carts 
and  wagons;  and  the  teams  and  carriages  of  the  purchasers  were  accustomed  to  collect 
there  in  great  number  to  receive  and  take  away  the  article;  and  in  consequence  of  their 
remaining  there  to  take  their  turns,  and  of  the  strife  among  the  drivers  fjr  priority,  and 
of  their  disorderly  conduct,  tlie  street  was  obstructed  and  rendered  inconvenient  to  those 
])assing  thereon;  it  was  held  that  the  defendants  were  guilty  of  nuisance;  People  v.  Cun- 
ningham, 1  Dcnio  521.  Nuisances  resulting  from  the  several  acts  of  distinct  parties,  e.  g. 
occupiers  of  land  raising  fenders  along  a  line  of  navigation,  may  be  made  the  subject  of  a 
joint  indictment  against  all  of  them;  R.  v.  TralFord  and  others,  1  B.  &  \A.  874;  but  the 
ill  consequences  of  erecting  piles  in  a  harbour,  if  slight,  uncertain  and  rare,  are  not  indict- 
able;  R.  V.  Tmdall  and  others,  6  A.  &,  E.  143 ;  1  N.  &.  P.  719. 

To  divert  a  part  of  a  public  stream,  whereby  the  current  of  it  is  weakened,  and 
rendered  incapable  of  carrying  vessels  of  the  same  burthen  as  it  could  before,  is  a  com- 
mon nuisance;  1  Hawk.  c.  75,  s.  11.  But  if  a  ship  or  other  vessel  sink  by  accident 
in  a  river,  althouifli  it  obstructs  the  navigation,  yet  the  owner  is  not  indictable  as 
tor  a  nuisance  for  not  removing  it;  R.  v.  Morris,  1  B.  &.  Ad.  441  ;  R.  v.  Watts,  2  Esp. 
675;  R.  V.  Tindall,  6  A.  &,  E.  143;  R.  v.  Russell  and  others,  9  D.  &  R.  5GI ;  R.  r. 
Ward,  4  A.  &  E.  384;  6  B.  &.  C.  5G6.  After  conviction,  the  court  may  award  a  fine,  or 
(if  the  subject  matter  of  the  nuisance  indicted  is  of  a  permanent  nature,  admitting  of  abate- 
ment), prostration  of  so  much  of  the  thing  as  makes  it  a  nuisance,  or  both  fine  and  pros- 
tration;  but  both  are  not  absolutely  neccssarv,  f'r  the  judgment  should  be  adapted  to  the 
nature  of  the  case;  R.  c.  Pappineau,  Slra.  f)t<6;  R.  v.  Yorkshire,  7  T.  R.  467  ;  R.  v.  Stead, 
8  ib.  142  ;  3  Bla.  C  221 ;  and  if  tiie  obstruction  which  was  indicted  is  removed,  so  that 
the  public  have  free  passajje  again,  the  judgment  will  be  for  a  nominal  fine;  R.  v.  Incle- 
don,  13  East  164;  R.  v.  Wiiite  and  Ward,  1  Burr.  33S. 

{^What  are  public  ways  and  bridges).  A  cartway  (via  or  adilus),  contains  a  footway 
{il<'r),  and  a  pack  and  prime  or  horse  and  footway  (nclus),  and  is  called  retria  alia  via, 
because  common  to  all  the  queen's  subjects;  Co.  Lit.  56,  a  ;  Bac.  Abr.  tit.  Highways  (A.) ; 
but  a  "  pack  and  prime"  way  does  not  contain  a  carriage  way,  ib.  First,  it  may  be  proper 
to  observe  that  no  prosecution  in  any  form  can  be  sustiiincd  for  the  omission  to  repair  any 
way  or  bridge.  A  bridge  may  be  a  common  hi(r/itvay;  Regina  v.  Sainthill,  Ld.  Raytn. 
1  174;  but  coun?!/ bridges  are  not  within  the  new  highway  act,  5  and  6  Wm.  IV.  c.  50;  un- 
less so  specially  mentioned,  («/>.  s.  5) ;  but  such  as  are  public;  for  the  omission  to  repair  a 
j)rivate  way,  or  even  its  positive  obstruction,  not  being  a  common  nuisance,  is  only  the 
ground  of  a  civil  action.  It  often,  therefore,  becomes  a  question,  whether  the  way  or 
bridge  in  respect  of  which  a  prosecution  is  instituted,  is  public  or  privnlt.  On  this  ques- 
tion it  is  indisputable  that  all  ways,  whether  for  carriages,  horses  or  toot  [)assengers,  lead- 
ing to  a  market  town,  or  beyond  it,  or  from  town  to  town,  are  properly  culled  '■high- 
ways;" Co.  Lit.  56,  a.  It  is  now  held  that  a  road  dedicated  to  and  used  by  tlu^  public 
for  twenty-five  years  becomes  a  highway,  which  the  parish  must  repair,  tliough  they 
have  neither  adopted  nor  acquiesced  in  the  dedication  or  the  user  ;  R.  w.  Leake  (Inhab.), 
5  B.  &  Ad.  46:);  2  N.  &  .M.  5-3,  S.  C;  see  R.  x,.  Paddington  (Vestry),  9  B.  &.  C.  456; 
R.  V.  Lyon,  5  U.  &  R.  4!)7;  and  four  or  five  years'  user  as  a  public  road  is  sufficient 
t)  wairant  a  jury  in  presuming  that  it  was  so  used  with  the  full  assent  and  by  tlie 
drdication  of  the  owners  of  the  soil;  Jarvis  v.  Dean,  3  Bing.  448;  Woodger  v.  Haddon, 
5  Taunt.  138.  In  the  latter  case,  eight  years  were  held  surticient,  and  no  particular 
time  necessary  to  constitute  evidence  of  dedication.     But  a  way    to    a  private   house, 


404  OFFKNCKS  AGAINST  SOCIETY. 

For  erecting  a  gate  across  a  public  highicaj/.(c) 

That  at  the  time  of  committing  the  nuisance  hereinafter  mentionpcl, 
there  was  and  yet  is  a  certain  ancient  common  highway  in  the  parish 
of  M.,  in  the  County  of  N.,  leading  from,  &c.,  into,  through  and  over  a 
certain  pubnc(rf)  highway, called  the  great  north  road,  and  from  thence 
to,  &c.,  in  the  parish  of  B,,  in  the  said  county,  for  all  the  good  people 

or  perhaps  even  to  a  village,  which  terminates  there,  or  leads  to  the  common  fields 
of  a  town,  and  it  is  said,  even  to  a  parish  church,  is  only  a  way  for  a  particular  class  of 
persons,  and  therefore  not  pulilic;  Hawk.  b.  1,  c.  76,  s.  1.  And  Ld.  Tenterden,  in  a  well 
known  case,  said  that  "he  had  great  difficulty  in  conceiving-  that  there  can  be  a  public 
way  which  is  not  a  thoroughfare,  as  the  public  at  large  cannot  well  be  in  the  use  of  it;" 
Wood  V.  Veal,  5  B.  &  Al.  454 ;  and  see  5  Taunt.  138,  VVoodger  v.  Haddon  ;  both  cases  of 
cul  de  sac;  R.  v.  Liniehousc,  2  Shower  455;  Drinkwater  v.  Porter,  7  C.  &  P,  181.  There 
must  be  an  intention  by  the  owner  of  the  soil  to  dedicate.  Of  that  intention  the  use  by 
the  public  is  evidence,  but  no  more.  A  single  act  of  interruption  by  the  owner  is  of  much 
more  weight  on  a  question  of  intention  than  many  acts  of  enjoyment;  diet.  Parke  B.  in 
Poole  V.  Huskinson,  11  M.  &  W.  830. 

All  bridges  built  in  highways,  by  whomsoever  erected  and  dedicated  to  the  public,  are 
public  bridges ;  but  to  constitute  a  bridge  a  public  bridge,  at  least  where  it  has  not  been 
repaired,  or  a  county  bridge,  it  must  be  over  such  water  as  answers  the  description  of  a 
Jlumen  vel  cursus  aqvcR,  tliut  is,  water  flowing  in  a  channel  between  banks  more  or  less 
defined,  although  Fiich  a  channel  may  be  occasionally  drj' :  2  Inst.  701  ;  R.  v.  Oxfordshire 
( Inhab.),  1  B.  &,  Ad.  28!i ;  (as  stated  by  Pattcson  J.,  in  R.  ».  Whitney  (Inhab.),  3  A.  &  E. 
72);  also  rcst.ited  per  cur.  1  B.  &.  Ad.  28!).  And  a  raised  causeway  forming  an  approach 
to  a  bridge,  but  at  more  than  tliice  linndred  fi'ct  from  it,  and  pierced  with  arches  and 
culverts  to  suffer  water  to  pass  under,  when  the  meadows  over  which  it  was  carried 
were  flooded,  is  not  such  a  bridge  as  the  county  is  bound  to  repair ;  R.  v.  Oxfordshire 
(Inhab.). 

But  the  Queen's  Bench  has  since  denied  that  R.  v.  Oxfordshire  proves  any  rule  of  law 
to  exist  for  prohibiting,  under  all  or  any  circumstances,  every  part  of  a  structure  from 
being  treated  as  a  bridge,  because  water  does  not  at  oil  times  flow  under  that  part ;  for  to 
confine  the  wads,  Jlumen  vel  cursns  aqua,  to  a  constant  stream  or  course  of  water,  flowing 
at  all  times  to  the  exclusion  oi'  Jloodwateis,  whether  rarely  or  oflen  occurring,  does  not 
consist  with  R.  v.  Trafiord,  1  B.  &  Ad.  874,  8^7,  affirmed  quoad  hoc  in  error,  2  Tyr.  201 ; 
8  Bing.  204  ;  2  ( ',  &,  J.  265  ;  where  it  was  held  unlawful  to  obstruct  the  accustomed  course 
of  flood  waters  flowing  only  occasionally.  At  any  rate,  where  the  arches  were  twenty  nine 
in  number,  contiguous  to,  and  as  it  were,  in  immediate  continuation  of  an  acknowledged 
county  bridge,  which  extended  from  one  end  of  them  over  the  river  Trent  by  five  arches, 
and  from  the  other  over  a  brook  by  eight  arches,  and  had  been  always  immcmorially, 
R.  i>.  Diihyshire  (Inhab.),  2  Q.  B.  745,  repaired  by  the  county  as  part  of  that  bridge;  it 
was  held  tliat  no  rule  of  law  [)revenled  the  whole  structure  from  being  taken  to  be  one 
county  bridge.  The  river  Trent  constantly  flowed  under  all  five  arches,  and  the  brook 
under  one  of  the  eight,  while  under  most  of  the  other  twenty-nine  were  pools  of"  stagnant 
water  at  all  times,  and  imder  all  of  them  the  water  of  Trent  flowed  in  flood  time;  ib.  The 
court  intimatcil  that  a  structure  of  arches  made  to  carry  a  highway  in  such  a  manner  as  to 
j)ermit  flood-waters  to  flow  in  their  accustomed  course,  slif)uld  be  treated  as  a  bridge, 
though  at  ordinary  times  there  may  l)e  no  waters  passing  under  the  arches. 

Where  a  bridge  consists  of  more  tlian  one  arch,  the  whole  must  be  indicted  as  one 
bridge;  nor  can  eucii  arch  be  there  treated  as  a  separate  bridge;  R.  v.  Oxfordshire  (Inhab.), 
1  B.  &,  Ad.  289,  as  stated  per  curium,  2  Q.  B.  7.')5. 

A  want  of  parapets  will  not  prevent  a  structure  from  being  a  bridge,  or  make  it  a  cul- 
vert only;  nor  will  the  niere  fact  of  an  arch  spanning  a  stream  necessarily  make  it  a  bridge; 
see  per  Ld.  Denman,  in  R.  v.  Whitney  (Inhab.),  3  A.  &.  K.  71  ;  and  Bridge's  case,  Godbolt's 
R.  346,  pi.  441  ;  stated  1  B.  &  Ad.  301,  note.  If  a  bridge  be  used  by  the  public  only  in 
time  of  flood,  and  be  shut  at  other  times,  it  will  only  be  publie  for  such  [lurpose,  and  at 
such  a  period;  R.  v.  Nortliarn[>toiishire  (Iiiiiab.),  2  M.  cSt  S.  262;  R.  v.  Buekinirhain  (Mnr- 
(juis),  4  ('ampb.  1-9;  but  though  the  purpose  for  wlii(-li  the  dedication  takes  place,  may  be 
limited,  there  can  be  no  dedication  to  a  limited  part  of  the  public;  diet.  Parke  B.,  11  M. 
&,  W.  H30  ;  Poole  ».  Huskinson  ;  Dickinson's  Q.  S.  31*6. 

{c)  Dickinson's  Q.  S.  6th  ed.  417. 

{d)  So  in  Regina  v.  Stratford  (Inhab.),  3  Ld.  Rayni.  40;  in  error;  Dickinson's  Q.  S. 
Gibed.  417. 


NUISANCE.  405 

of  said  state  to  go,  return  and  pass  on  foot  and  on  horseback,  at  their 
free  will  and  pleasure,  and  that  on,  &c.,  A.  B.,  late  of,  &c.,  with  force 
and  arms,  at  a  certain  place  there  in  the  parish  of  aforesaid, 

contiguous  to  and  on  the  east  side  of  the  great  north  road  aforesaid, 
unlawfully  and  injuriously  did  erect  and  cause  to  be  erected  a  certain 
wooden  gate,  of  the  length  of  fifteen  feet  and  of  the  height  of  four 
feet,  upon  and  across  the  said  highway,  leading  from  the  place  called, 
6lc.,  to  the  great  north  road  aforesaid  ;  and  that  the  said  A.  B.,  the 
said  wooden  gate  so  as  aforesaid  erected  and  made  from  the  said,  &c., 
until  the  day  of  the  taking  this  inquisition,  with  force  and  arms,  at, 
&.C.,  aforesaid,  unlawfully  and  injuriously  did  continue  locked  and 
fastened  with  an  iron  chain,  and,  yet  doth  continue,  by  which  the  com- 
mon highway  last  aforesaid,  during  all  the  time  aforesaid,  was  so  ob- 
structed and  stopped  up  that  the  good  people  of  said  state  in,  by  and 
through  the  same  highway  could  not,  nor  yet  can  go,  return  and 
pass  on  foot  and  on  horseback  so  freely  as  they  ought  and  were  wont 
to  do;  to  the  great  damage  and  common  nuisance(6')  of  all  the  good 
citizens  of  the  said  state  going,  returning,  passing  and  repassing 
in,  along  and  through  the  said  last  mentioned  highway,  to  the  evil 
example,  &.C.,  and  against,  &c.     [Conclude  as  in  book  \,  chap.  3). 

For  erecting  and  continuing  a  house,  -part  of  which  ivas  on  the  high- 
way.{f) 

{Describe  the  highway  as  before).  That  A.  B.,  late  of,  &c.,  with 
force  and  arms,  at,  &c.,  unlawfully  did  erect  and  build,  and  cause  and 
procure  to  be  erected  and  built,  a  certain  brick  messuage  and  tene- 
ment, containing  in  length  twelve  feet  and  six  inches,  and  in  depth  at 
the  east  end  thereof  five  feet  and  six  inches,  and  in  depth  at  the  west 
end  thereof  two  feet  nine  inches,  and  that  the  same  was  erected  and 
built,  and  caused  and  procured  to  be  erected  and  built,  by  him  the 
said  A.  B.,  in  and  upon  the  said  ancient  and  common  highway  at  the 
parish  aforesaid,  in  the  county  aforesaid,  to  wit,  opposite  to  a  certain 
dwelling  house  of  oneC.  H.  there  situate,  and  the  said  part  of  the 
said  messuage  and  tenements  so  erected  and  built,  and  caused  and  pro- 
cured to  be  erected  and  built,  by  him  the  said  A.  B.  as  aforesaid,  in 
and  upon  the  said  ancient  and  common  highway,  at  the  parish  afore- 

(e)  Every  indictment  and  presentment,  vi'hcther  for  nuisances  arising  from  neglect  of 
duty  or  for  encroacluneiits  on  the  public  rigiits,  must,  in  its  conclusion,  contain  the  words 
"to  the  common  nuisance  of  all  the  liege  subjects  of  our  lady  tlie  now  queen,"  residing, 
passing  or  using,  &,c.,  (according  to  the  facts) ;  2  Stra.  6S8 ;  Dickinson's  Q.  S.  6th  ed.  417. 
Sec  ante,  p.  402. 

(/)  R.  V.  Wright,  3  B.  t&  Ad.  681.  See  form  of  indictment  for  erecting  and  continuing  a 
market  stall  in  a  public  highway;  R.  v.  Starkey,  7  A.  &  E.  95.  Indictment  lies  ajjainst 
even  the  tenant  at  will  of  a  house,  which,  standing  on  the  highway,  is  ruinous  and  like  to 
fall  down,  for,  as  the  danger  is  what  concerns  the  public,  they  have  a  remedy  against  the 
occupier  in  respect  of  his  occupation;  Reg.  v.  Watts,  1  Salk.  357,  S.  C.  Ld.  Rayn^.  856; 
Rym.  Ent.  25 ;  sec  other  cases,  Burns'  Justice,  tit.  Highways,  s.  vi.  4  (cited  9  B.  &  C.  730) ; 
see  R.  V.  Hollis,  2  Stark.  C.  N.  P,  536,  post.  An  increased  general  facility  in  communi- 
cating with  a  seaport,  and  particularly  in  the  conveying  coals  tlicic,  will  not  justify  nar- 
rowing the  highway  by  laying  down  a  railway  alongside  of  it;  R.  v.  iMorris,  1  B.  &  Ad. 
441.  As  to  the  neighbouiiiood  of  railways,  annoying  old  roads  by  smoke,  see  R. ».  Peesc, 
4  B.  &,  Ad.  30;  R.  v.  Gregory,  5  ib.  555;  2  N.  &  .Vl.  478;  2  Tyr.  R.  201,  S.  C.  in  error. 
See  note  on  p.  403,  as  to  the  learning  generally  on  this  point. 


40Q  OFFENCIOS  AGAIXST  SOCIETY. 

said  in  the  county  aforesaid,  he  the  said  A.  B.  from  the  said 
day  of  in  the  year  aforesaid,  until  tiie  day  of  the  taking  of  this 

inquisition,  with  force  and  arms,  at  the  parish  aforesaid  in  the  county 
aforesaid,  unlawfully  and  injuriously  did  continue  and  yet  doth  con- 
tinue ;  by  reason  and  means  whereof  the  said  ancient  and  common 
public  highway  was,  during  the  time  aforesaid,  at  the  parish 
aforesaid  in  the  county  aforesaid,  encroached  upon,  narrowed  and 
straitened,  so  that  the  good  people  of  the  said  state,  by  and 
through  the  said  highway  could  not,  nor  yet  can  go,  return,  &c.  (.^* 
before). 

For  obstructing  a  common  highicay  by  placing  in  it  drays.{g) 

In  the  county  aforesaid,  in  a  certain  street,  there  called  Leman 
street,  being  a  conmion  highway,  used  for  all  the  good  people  of  the 
said  state,  with  their  horses,  coaches,  carts  and  carriages  to  go,  re- 
turn, pass,  repass,  ride  and  labour  at  their  free  will  and  pleasure,  un- 
lawfully and  injuriously  did  (put  and  place  three  empty  drays,  and 
did  then  and  on  the  said  other  days  and  times  there,  unlawfully  and 
injuriously  permit  and  suffer  the  said  empty  drays  respectively  to  be 
and  remain  in  and  upon  the  common  highway  aforesaid,  for  the  space 
of  several  hours,  to  wit,  for  the  space  of  five  hours  on  each  of  the 
said  days);  whereby  the  common  highway  aforesaid,  then  and  on 
the  said  other  days  and  times,  for  and  during  all  the  time  aforesaid, 
on  each  of  the  said  days  respectively,  was  obstructed  and  strait- 
ened, so  that  the  good  people  of  the  said  state  could  not  then  and  on 
the  said  other  days  and  times,  go,  return,  pass,  repass,  ride  and  labour 
with  their  horses,  coaches,  carts  and  other  carriages,  in,  through  and 
along  the  common  highway  aforesaid,  as  they  ought  and  were  wont 
and  accustomed  to  do  ;  to  the  great  damage  and  common  nuisance 
of  all  the  people  of  the  said  state  going,  returning,  passing,  repassing, 
riding  and  labouring  in,  through  and  along  the  common  highway 
aforesaid,  to  the  evil  example,  &c.,  and  against,  &c.  {Conclude  as 
in  book  1,  chap.  3). 

Same  with  filth,  6fC. 

That  A.  B.  of  Boston  aforesaid,  yeoman,  on,  &c,,  at,  &c.,  a  cer- 
tain common. and  public  nuisance  in  and  upon  the  land  and  tene- 
ment of  him  the  said  A.  B.  situated,  at,  &c.,  near  to  certain  pub- 
lic passage-ways,  to  wit,  certain  passage-ways  called  and  known  by 
the  name  of  did  cause,  create,  suffer  and  maintain,  by  then 

and  there  causing  and  sufi'ering  great  quantities  of  offensive  and 

(^)  Arclibold's  C.  p.  5th  Am.  ed.  756. 

See  precedents  of obstriiclinjT  a  hifrhwiiy  by  continuinjj  a  licdidfc  across  it;  C.  Cir.  Com. 
307  ;  by  crcctififr  a  gate  across  it;  6  Went..  401,  40.'');  Rrjr.  v.  Rosfield,  i  C.  &  M.  151; 
by  builditifr  or  contiiiuinfr  a  buiidiiifj  ii|ioii  it;  4  Went.  181,  191;  1  A.  &  E.  822;  by 
placing  carts  upon  it  for  the  sale  of  vofrctablcs ;  C.  Cir.  Com.  30.');  by  layin<j  soil  u[)on  it; 
(,'.  Cir.  Cotn.  303;  by  laying  rubbish  upon  it;  C.  Cir.  Com.  315;  by  digging  holes  in  it; 
i).  Cir.  CJorn.  303,  314;  by  digging  a  horne-pond  atid  erecting  a  cistern  in  it;  C.  Cir.  Com. 
304;  by  Kto[)ping  a  water  course  and  Iheri'liy  overflowing  the  liighway ;  C.  (^ir.  t'om.376  ; 
by  exhibiting  effigies  at  a  window  and  thereby  attracting  a  crowd;  R.  v.  Carlisle,  C.  C.  &. 


NUIS.WCE.  407 

stinking  filth,  water  and  substances,  solid  and  liquid,  to  collect,  stag- 
nate, fernnent  and  be  mixed  together  in  and  upon  his  land  and  tene- 
ment aforesaid,  and  from  his  said  land  and  tenement  to  flow,  descend 
and  be  removed  to  and  upon  certain  open  and  exposed  places  and 
yards,  upon,  in  and  near  the  same  land  and  tenement  and  to  and 
upon  certain  public  passages  near  thereunto,  to  wit,  certain  passage- 
ways called  and  known  by  the  name  of  and  from  said  offensive 
and  stinking  substances,  water  and  filth  did  cause,  suffer  and  permit 
divers  noxious,  offensive,  deleterious,  unwholesome  and  unhealthy 
vapours,  exhalations  and  smells  to  arise  and  then  and  there  to  con- 
taminate, poison  and  destroy  the  air  and  atmosphere  above,  around 
and  near  the  same  tenements  and  lands,  and  in  and  upon  and  over 
said  passage-ways,  to  wit,  the  passage-ways  called  over  which 
the  good  citizens  of  said  commonwealth  in  great  numbers  pass  and 
repass  every  day,  to  wit,  to  the  number  of  three  hundred  passengers 
daily,  and  near  which  many  citizens  inhabit,  live  and  work,  to  the 
great  damage  and  injury  of  said  passengers  and  all  other  persons 
there  being,  residing  and  passing,  to  the  great  hazard  of  their  health, 
comfort  and  lives,  and  to  the  common  nuisance  of  all  of  said  passen- 
gers, persons  and  citizens,  and  of  all  the  citizens  of  said  common- 
wealth tliere  being,  and  against,  &c.    {Conclude  as  in  book  1,  chap.  3). 

For  letting  off  jire-u-orhs  in  the  public  streel.{h) 

That  A.  B.,  late  of,  &c.,  on,  &c.,  at,  &c.,  in  a  certain  common  and 
public  street  and  highway  there  for  all  the  good  people  of  the  said 
state,  on  foot  and  with  their  horses,  carts  and  carriages  to  go,  return, 
ride,  pass  and  repass  and  labour,  at  their  free  will  and  pleasure, 
wrongfully,  unlawfully  and  injuriously  did  fire  certain  fire-works 
called  rockets,  serpents  and  Roman  candles,  whereby  the  said  public 
street  and  common  highway  was  then  and  there  greatly  obstructed, 
and  divers  good  citizens  of  the  said  state  then  and  there  standing, 
being,  passing  and  repassing  in  and  along  the  said  last  mentioned 
public  street  and  common  highway,  were  then  and  there  greatly 
terrified  and  piU  in  great  peril  and  danger  of  bodily  harm,  and  could 
not  then  go,  return,  pass  and  repass,  on  foot  and  with  their  horses, 
coaches,  carts  and  carriages,  in  and  along  the  said  last  mentioned 
public  street  and  common  highway,  as  they  ought  to  have  done,  and 
had  been  used  and  accustomed  to  do,  and  otherwise  might  and  would 
have  done;  to  the  great  terror,  alarm,  danger  and  common  nuisance 
of  ail  the  good  people  of  the  said  state  in  and  near  the  said  public 
street  and  highway  inhabiting  and  residing,  and  of  all  others  the  good 
people  of  the  said  state  there  standing,  being  and  passing,  in  con- 


(/*)  Dickinson's  Q.  S.  6tli  ed.  421.  9  and  10  Wm.  III.  c.  7,  provides  by  s.  2  and  3, 
specific  penalties  for  this  offijnce,  to  be  levied  by  distress  atler  summary  conviction  bv  a 
justice;  yet  by  the  first  section,  the  offence  is  declared  to  become  a  common  nuisance ; 
therefore  it  may  be  indicted  as  such,  either  at  common  law  or  under  the  statute;  R.  v. 
Harris,  4  T.  R.  2U2 ;  1  Saund.  135,  n.  (4).  The  making'-,  soHiiio,  throwing;  or  perniittinjf 
to  be  thrown  from  any  house,  makinjr  or  selliiitj  any  moulds  for  inakinir,  or  aiding  in 
making  any  fire-works,  are  all  declared  to  be  offences  by  the  different  sections  of  the  sta- 
tute. 


408  OFFENCES   AGAINST  SOCIETY. 

tempt  of  the  said  state  and  their  laws,  to  the  evil  example,  &c., 
against,  &.C.,  and  against,  &c.     {Co7ic/ude  as  in  book  1,  chtqi.  3). 

For  kee'pivg  a  pond  of  stagnant  vmter  in  a  city. 

That  J.  P.,  I.  Z.  &  H.  H.,  all  late  of,  &c.,  gentlemen,  on,  &c.,  and  at 
divers  days  and  times  between  that  day  and  the  day  of  the  taking  of 
this  inquisition,  with  force  and  arms,  &c.,  at  the  city  aforesaid  and 
within  the  jurisdiction  of  this  court,  then  and  there  unlawfully  and 
knowingly  did  keep  and  permit  to  be  and  remain,  in  and  upon  a 
certain  lot  or  piece  of  ground  to  them  the  said  J.,  I.  and  H.  belong- 
ing, and  in  their  possession  then  and  there  being,  situate  near  and 
adjoining  the  public  streets  in  the  said  city,  to  wit,  Mulberry  street 
and  Eightli  street,  a  certain  pond  of  putrid,  filthy,  noxious  and 
stagnant  water  one  hundred  yards  in  circumference,  by  and  from 
which  divers  hurtful,  pernicious  and  unwholesome  smells  on  the  day 
and  during  the  time  aforesaid  did  and  doth  arise,  and  the  air  there 
was  and  yet  is  thereby  greatly  corrupted  and  infected,  to  the  great 
damage  and  common  nuisance,  not  only  of  all  the  subjects  of  this 
commonwealth  their  resident  and  dwelling,  but  also  of  all  the  sub- 
jects of  this  commonwealth  passing  and  repassing,  &c. 

For  placing  a  quantity  of  foxd  liquor  called  ^^  returns, ^^   in  the  high- 
tcay.{i) 

That  A.  B.,  the  day  of  in  the  year,  &c.,  at  the  county 

aforesaid  and  within  the  jurisdiction  of  this  court,  did  discharge  out 
of  the  still-house  of  him  the  said  A.  B.,  lying  and  being  in  the  county 
aforesaid,  into  the  road  &c.,  a  quantity  of  foul  and  nauseous  liquor 
called  "  returns,"  to  the  great  damage  and  common  nuisance  of  all 
the  good  citizens  of  this  commonwealth,  and  against,  etc.  {Conclude 
as  in  book  1,  chap.  3). 

For  laying  dung  near  a  public  street,  whereby  the  air  was  infected  and 
inhabitants  annoyed.{j) 

That  A.  B.,  late  of,  &c.,  on,  &c.,  and  on  divers  other  days  and 
times  between  that  day  and  the  day  of  the  taking  of  this  inquisition, 
with  force  and  arms  at,  &c.,  aforesaid,  to  wit,  in  a  certain  common 
and  public  highway  there,  called  B.'s  wharf,  unlawfully  and  inju- 
riously did  put,  place  and  leave,  and  caused  and  procured  to  be  put, 
placed  and  left,  divers  large  quantities  of  dung  and  filth,  whereby 
divers  noxious  and  unwiiotesome  smells  from  the  said  dung  and  filth 
did  then  and  there  arise,  and  thereby  the  air  there  became  and  was 
greatly  corrupted  and  infected;  to  the  great  damage  and  common 
luiisance  not  only  of  all  the  good  people  of  the  said  state,  inhabiting 
and  residing  near  the  place  where  the  said  dung  and  filth  was  so  put, 
placed  and  left  as  aforesaid,  but  also  of  all  other  good  people  of  the 
said  state  in,  by  and  through  the  said  liighway,  and  near  the  place 

(i)  Drawn  by  William  Bradford,  Esq. 
(;')  Dickinson'a  Q.  S.  Cth  ed,  427. 


NUISAXCE.  409 

aforesaid,  going,  returning,  passing  and  repassing,  and  against,  &c. 
[Conclude  as  in  book  1,  chap.  3). 

For  lettivg  wagons  stand  in  a  public  street,  so  as  to  incommode  passen' 
gers.{h) 

That  A.  B.,  late  of,  &c.,  before  and  at  the  times  hereafter  men- 
tioned, was  and  still  is  a  proprietor  of  divers  wagons  for  conveyance 
for  hire  of  goods  and  merchandise  to  and  from  E.,  and  being  such 
proprietor,  he  the  said  A.  B.,  on,  &c.,  and  on  divers  othei^-days  and 
times  between  that  day  and  the  day  of  in  the  year  afore- 

said, in  the  parish  of  in  the  county  aforesaid,  without  just  cause 

or  excuse,  but  wrongfully  and  unjustly  did  cause  and  permit  divers, 
to  wit,  twenty  wagons  to  stand  and  remain  for  a  long  time,  to  wit, 
ten  hours  on  each  day,  before  his  warehouse,  situate  in  a  public  street 
and  highway  called  in  the  parish  aforesaid,  in  the  county  afore- 

said, and  divers  cumbrous  and  other  parcels  which  had  been  con- 
veyed or  were  intended  to  be  conveyed  in  such  wagons,  to  lie  during 
such  time,  scattered  about  such  public  street;  to  the  common  nuisance, 
great  hinderance,  impediment  and  annoyance  of  all  the  good  people  of 
the  said  state,  passing  and  repassing  such  streets,  &,c. 

Second  count. 

(That  the  defendant  permitted  divers  wagons  to  stand  in  the  public 
street  and  highway,  and  there  to  remain  before  his  warehouse  for  a 
long  and  unreasonable  time,  by  which  the  people  of  the  said  state 
were,  during  thai  time,  much  impeded  and  obstructed,  &c.) 

For  placing  casks  in  the  liigliicay. 

That  A.  B.,  late,  &c,,  on,  &c.,  at,  &c.,  with  force  and  arms,  &c.,  in 
and  upon  a  certain  road  and  highway  called  in  the  township 

and  county,  &c.,  the  said  road  then  being  a  common  road  and  high- 
way for  ^11  the  citizens  of  this  commonwealth  to  go,  pass  and  travel, 
at  their  will,  with  their  horses,  carts  and  carriages,  ten  wooden  casks 
unlawfully  and  injuriously  did  put,  place  and  cause  to  be  put  and 
placed,  and  that  the  said,  ten  wooden  casks,  by  the  said  J.  B.  in  the 
common  road  and  highway  put  and  placed  and  caused  to  be  put  and 
placed,  from  the  day  of  in  the  year  atbresaid,  to  the 

day  of  in  the  month  and  year  aforesaid,  in  the  county  atbresaid, 

the  said  J.  B.  did  voluntarily  permit  to  be  and  remain. 

By  reason  whereof  tlie  conmion  road  and  highway  aforesaid  for 
all  the  time  aforesaid,  at  the  county  aforesaid,  was  so  obstructed  that 
the  good  citizens  of  this  commonwealth,  in  and  along  the  said  road 
and  highway,  about  their  necessary  business,  with  their  horses,  carts 
and  carriages  could  not  go,  pass  and  travel  so  freely  as  of  right  they 
ought,  to  the  great  damage  and  common  nuisance  and  hinderance  of 
all  the  citizens  of  this  commonwealth  in  and  along  the  said  road  pass- 
ing, &c.,  to  the  evil  example,  &,c.,  against,  &.c.  [('onclude  as  t'/i 
book  1,  chaj).  3). 

(Jt)  Dickinson's  Q.  S.  6iii  cd.  421. 
35 


■410  OFFENCES  AGAINST  SOCIETY. 

For  leaving  open  an  area  on  foot  favenienl  in  a  street.Q) 

{Describe  a  public  way  as  on  p.  403).  And  that  A.  B.,  late  of,  &c., 
on,  &c.,  witli  tbrce  and  arms  at,  &c.,  in  a  certain  part  of  the  said  com- 
mon liigliway  and  pubhc  street,  there,  to  wit,  in  the  foot  pavement 
of  the  said  street,  before  the  dwelling  house  of  him  the  said  A.  B.,  un- 
lawfully and  injuriously  did  leave  open  a  certain  area  of  the  length 
of  and  of  the  breadth  of  belonging  to  him  the  said  A.  B., 

without  putting  or  placing,  or  causing  to  be  put  and  placed,  any  rails 
or  other  fence  to  enclose  the  same ;  and  he  the  said  A.  B.  from,  &:c., 
until,  &c.,  at,  &c.,  the  said  area  so  as  aforesaid  being  in  the  said  foot 
pavement  of  the  said  common  highway  and  public  street,  unlawfully 
and  injuriously  did  cause,  permit  and  suffer  to  be,  remain  and  conti- 
nue open,  by  reason  and  means  whereof  the  good  people  of  the  said 
state,  dnring  the  time  aforesaid,  could  not,  nor  yet  can  go,  return 
and  pass  on  foot  in,  by  and  through  the  said  common  highway 
and  public  street,  and  as  they  were  used  and  accustomed  and  were 
wont  and  ought  to  do,,  without  great  peril  and  danger  of  their  lives ; 
to  the  great  damage  and  common  nuisance  of  all,  &c.,  in,  by  and 
through,  &c.,  going,  returning  and  passing  on  foot,  and  against,  &.c. 
{Conclude  as  in  book  1,  chap.  3). 

For  laying  dirt  in  a  footway. {ni) 

That  P.  B.,  late  of,  &c.,  with  force  and  arms  at,  &c.,  aforesaid,  in  a 
certain  common  footway  there  leading  from  that  part  of  N.  green 
which  is  in  the  parish  aforesaid  in  the  county  aforesaid,  towards  and 
unto  the  parochial  church  of  the  same  parish  in  the  said  county,  did 
unlawfully  and  injuriously  put,  place  and  lay,  and  cause  to  be  put, 
placed  and  laid,  two  cartloads  of  dirt  and  other  filth  in  the  said  fool- 
way,  from  the  said,  &c.,  until  the  day  of  the  taking  of  this  inquisition, 
at,  &,c.,  aforesaid,  and  the  same  on,  &c.,  at,  &c.,  unlawfully  and  inju- 
riously did  permit  and  sutler  to  be  and  remain,  by  reason  whereof 
the  footway  aibresaid,  during  the  time  aforesaid,  was  and  yet  is 
greatly  obstructed  and  straitened,  so  that  the  said  people  of  the  said 
state  through  the  same  footway  could  not,  during  the  time  aforesaid, 
nor  yet  can  go,  return,  pass,  repass  and  labour  as  they  ought  and  were 
wont  to  do ;  to  the  common  nuisance  and  great  damage,  &c.,  and 
against,  &,c.     {Conclude  as  in  book  1,  chap.  3). 

For  keeping  aforocions  dog. 

That  A.  B.,  late,  &:c.,  on,  &.C.,  at,  &c.,  and  on  divers  other  days  and 
times,  with  force  and  arms,  near  unto  the  common  highway,  and  in 
and  near  the  public  streets  there  unlawfully  and  knowingly  did  keep 
and  still  doth  keep,  a  certain  dog  of  a  ferocious  and  furious  nature, 
and  the  said  dog,  on  the  day  and  year  aforesaid,  and  on  the  said  other 
days  and  times,  at  the  couiily  aforesaid,  near  unto  the  common  high- 
Way  and  in  and  near  the  j)iil)lic  streets,  llien  and  there  unlawfully 
Hiid  knowingly  did  j)ermit  and  sutler,  and  still  doth  permit  and  suffer 

(Z)  Dickinson's  Q.  S.  6th  cd.  'II'J.  (m)  lb.  420. 


NUISA\CE. 


411 


to  go  unmuzzled  and  at  large,  by  reason  whereof  the  good  people  ot 
this  commonwealth,  and  the  citizens  of  the  county  of  on  the 

day  and  year  aforesaid,  and  on  the  said  other  days  and  times  at  the 
county  aforesaid,  could  not,  nor  can  they  now  go,  return,  pass  and 
labour  in  and  through  the  said  common  highway  and  public  streets, 
without  great  danger  and  hazard  of  being  bit,  maimed  and  torn  by 
the  said  dog  and  losing  their  lives,  to  the  great  damage,  terror  and 
common  nuisance  of  all  the  people  and  citizens  aforesaid,  in,  by  and 
through  the  said  common  highway  and  public  streets  then  going  and 
returning,  passing,  repassing  and  labouring,  to  the  evil  example,  &.C., 
and  against,  &c.     {^Conclude  as  in  book  1,  chajj.  3). 

For  'profane  swearing  in  a  public  slreet.{n) 

That  A.  B.,  being  an  evil  disposed  person,  &c.,  did,  in  the  public 
street  of  Jefferson,  profanely  curse  and  swear,  and  take  the  name  of 
God  in  vain,  to  the  evil  example,  &c.,  and  to  the  common  nuisance 
of  the  good  citizens  of  the  state,  and  against,  &c. 

Fo7'  obstructing  tovmrnys  in  Massachusetts,  under  statutes  of  1186;  c.  67, 
s.  7,  and  1786,  c.  8l",  s.  t).{o) 

That  A.  B.  of,  &c.,  labourer,  &c.,  and  on  divers  other  days  and  times 
between  that  day  and  the  taking  this  inquisition,  at,  &c.,  with  force  and 
arms  in  and  upon  a  certain  lownway  there  legally  laid  out,  accepted 
and  established  as  a  townway  in  the  said  town  of  S.  (which  way 
leads  and  extends  from  the  dwelling  house  of  G.  H.  to  the  dwelling 
house  of  J.  K.  in  the  said  town  of  S.),  did  unlawfully  and  injuriously 
put,  place  and  erect  a  certain  fence,  in  and  upon  and  across  the  high- 
way aforesaid  ;  and  the  same  fence  did  then  and  there  unlawfully  and 
injuriously  continue  and  suffer  to  remain,  from  the  said  day  of 
to  the  day  of  the  finding  of  this  bill ;  whereby  the  way  aforesaid,  for 
and  during  the  whole  time  atbresaid,  was  wholly  obstructed,  so  that 
the  citizens  of  the  commonwealth  were  prevented  from  passing  and 


(n)  Taylor  C.  J. :  "  It  was  held,  in  the  case  of  the  Stale  v.  Waller,  that  if  the  offence 
with  which  the  defendant  then  stood  charged,  had  been  laid  as  a  common  nuisance,  and 
the  jury  had  so  found  it,  the  judgment  would  have  been  supported.  Drunkenness  and 
profane  swearing  are  placed  on  the  same  footing  by  the  act  of  1741,  c.  30,  and  where  com- 
mitted in  single  acts,  may  be  punished  summarily  by  a  justice  of  the  peace.  But  where 
the  acts  are  repeated,  and  so  public  as  to  become  an  annoyance  and  inconvenience  to  the 
citizens  at  large,  no  reason  is  perceived  why  they  are  not  indictable  as  common  nuisances. 
Several  offences  are  slated  in  the  books  as  so  indictable,  lliough  not  more  troublesome  to 
the  public  than  the  one  before  us.  A  common  scold  is  indictable  as  a  common  nuis- 
ance ;  and  with  equal,  if  not  stronger  reason,  I  should  think,  a  common,  profane  swearer 
may  be  so  considered;"  State  v.  Ellar,  I  Dev.  2G7,  268. 

(o)  Com.  B.  Gowen,  7  Mass.  378.  This  indictment  was  contested  on  two  grounds :  first, 
that  no  indictment  lies  for  an  obstruction  to  a  townway,  which  it  was  urged  was  distin- 
guishable from  a  public  highway  by  being  merely  for  the  accommodation  of  the  people  ot 
the  town;  and  secondly,  because  the  continuance  of  the  nuisance  was  not  averred  to  bo 
with  force  and  arms.  These  words,  however,  all  the  courts  have  now  concurred  in  reject, 
jtig  as  sujMjrfluous  in  every  case  (VVh.  C.  L.  102;  ante,  p.  9),  and  the  first  point  was  not 
seriously  pressed.  The  spirit  of  the  ruling  in  Resp.  v.  Arnold,  3  Yeates  423,  is,  that  a  road 
to  which  the  public  has  access,  even  though  it  may  be  technically  called  a  private  road, 
is  to  be  protected  from  obstruction  by  indictintnt. 


412  OFFENCES  AGAINST  SOCIETY. 

repassing  and  using  the  said  way,  as  they  have  a  right  and  'have 
been  wont  to  do;  to  the  great  injury  and  common  nuisance  of  all  the 
citizens  of  said  commonweahh  having  occasion  to  pass,  repass  and 
use  tiie  way  aforesaid,  against,  &.C.,  and  contrary,  &c.  {Conclude  as 
in  book  1,  chap.  3). 

Fur  blocking  up  the  great  square  of  a  town  house  in  Pennsylvania.{p) 

That  for  a  long  time  ago,  before  and  until  the  time  of  the  ob- 
struction and  nuisance  hereinafter  mentioned,  there  was,  and  still  of 
right  ought  to  be  a  certain  common  and  public  highway  in  the 
borough  of  Bedford  and  county  aforesaid,  commonly  called  and  well 
known  by  the  name  of  the  public  and  great  square  of  said  borough, 
for  all  good  citizens  of  this  commonwealth  to  go,  return,  pass,  repass 
and  ride  and  labour  on  foot  and  on  horseback,  and  with  their  cattle 
and  carriages  at  their  free  will  and  pleasure,  and  that  on,  &c.,  a  cer- 
tain house,  erection  and  building  made  of  bricks,  mortar  and  other 
materials,  had  been  built  and  erected  by  certain  persons  to  the  jurors 
aforesaid  as  yet  unknown,  which  said  house,  erection  and  building 
took  in,  encroached  upon,  stopped  up  and  obstructed  a  certain  part 
of  tlie  aforesaid  common  and  public  highway  called  tlie  public  and 
great  square  of  said  borough,  being  iu  length  thirty-nine  feet  and 
upwards  and  in  breadth  twenty-one  feet  and  upwards,  whereby  the 
said  public  and  common  highway  was  obstructed  and  stopped  up,  so 
that  the  good  citizens  of  this  commonwealth  could  not  with  their 
cattle  and  carriages,  on  foot  and  on  horseback,  go,  return,  pass  and 
repass,  ride  and  labour,  at  their  free  will  and  pleasure,  as  they  had 
been  accustomed  to  do;  and  that  G.  W.  B.  and  J.  W.  D.,  late  of  the  said 
county,  yeomen,  the  said  erection  and  building  so  as  aforesaid  built 
and  erected,  and  as  aforesaid  taking  in,  encroaching  upon,  stopping 
up  and  obstructing  a  certain  part  of  the  aforesaid  common  and  public 
highway,  on,  &c.,  and  from  that  time  until  the  day  of  taking  this 
inquisition,  with  force  and  arms,  at  the  borough  of  Bedford  in  the 
county  aforesaid  and  within  the  jurisdiction  of  this  court,  unlawfully 
and  injuriously  did  keep,  maintain  and  continue  and  still  doth  keep, 
maintain  and  continue,  whereby  the  said  common  and  public  high- 
way during  the  time  aforesaid,  hath  been  and  yet  is  obstructed  and 
stopped  up,  so  that  the  good  citizens  of  this  connnonwealth  during  all 
that  time,  have  been  and  yet  are  obstructed  and  hindered  in  going 
and  returning,  passing  and  repassing,  riding  and  labouring  on  foot 
and  on  horseback  with  their  cattle  and  carriages  at  their  free  will  and 
pleasure  in  and  along  the  said  common  and  public  highway,  as  they 
had  been  used  and  accustomed  to  do;  to  the  great  damage  and  com- 
mon nuisance  of  all  the  good  citizens  of  this  commonwealth  in  and 
along  the  said  public  and  common  highway  going,  returning,  pass- 
ing, repassing,  riding  and  labouring  on  foot  and  on  horseback,  and 
with  cattle  and  carriages,  &c.  (Conclude  as  in  jifior  counts). 


■{p)  Com.  t;.  Dovvmun,  3  Barr  203. 


NUISANCE.  413 

For  erecting  a  v-ooden  building  on  public  square  of  a  village  in  Ver- 
mont.{q) 

That  A.  B.  on,  &c.,  with  force  and  arms  at,  &.C.,  did  unlawfully 
and  injuriously,  in  and  upon  a  certain  public  square,  and  in  the  com- 
mon highway  there,  called  the  public  square,  situate  in  the  village  of 
St.  A.,  in  the  County  of  F.,  lying  east  of  and  adjoining  the  stage  road 
leading  through  the  village  of  St.  A.,  put,  place  and  set  up,  and 
caused  to  be  put,  placed  and  set  up,  one  large  wooden  building  forty 
feet  and  upwards  in  length,  and  thirty  feet  and  upwards  in  breadth  ; 
and  the  said  building  so  as  aforesaid  put,  placed  and  set  up  in  and 
upon  the  aforesaid  public  square  and  common  highway,  he  the  said 
C.  W.,  upon  and  from  the  said  twenty-eighth  day  of  May,  A.  D.  one 
thousand  eight  hundred  and  twenty-eight,  till  the  present  time,  with 
force  and  arms,  unlawfully  and  injuriously  hath  upheld,  maintained 
and  continued,  and  still  doth  uphold,  maintain  and  continue,  whereby 
the  said  public  square  and  connnon  highway,  on,  &c.,  and  during  all 
that  time,  was  and  has  been  greatly  obstructed,  narrowed  and  strait- 
ened, so  that  the  citizens  of  this  state,  in  and  upon  and  through  said 
public  square  and  common  highway,  all  that  time  could  not,  nor  can 
now  go,  return,  pass  and  repass  as  they  ought  and  were  accustomed 
to  do;  to  the  great  damage  and  nuisance  of  all  the  citizens  of  this 
state  going  and  returning,  passing  and  repassing  in  and  upon  anfl 
through  the  said  public  square  and  common  highway,  and  against, 
&c.     {Conclude  us  in  book  1,  chaj).  3). 

For  throwing  dirt  upon  a  public  ht.{r) 

That  A.  B.,  late  of,  &c.,  yeoman,  on,  &c.,  and  from  that  day  until 
the  taking  of  this  inquisition,  at,  &c.,  with  force  and  arms,  &c.,  un- 
lawfully and  obstinately  did  place,  put  and  keep,  and  caused  to  be 
placed,  put  and  kept  on  a  certain  lot  or  piece  of  ground  situate,  lying 
and  being  at  the  corners  of  Spruce,  Front  and  Dock  streets,  in  the 
said  city,  and  near  and  adjoining  to  the  public  streets  and  highways, 
to  wit,  Spruce,  Front  and  Dock  streets  in  the  said  city,  and  also  near 
the  dwelling  houses  of  divers  citizens  of  this  commonwealth,  ceitain 
large  quantities,  to  wit,  orte  hundred  cartloads  of  the  filth,  dung, 
manure,  dirt,  excrement  and  scrapings  from  the  surface  of  the 
wharves,  gutters  and  streets  in  the  said  city,  whereupon  divers  fetid, 
noisome,  hurtful,  pernicious  and  unwholesome  smells,  on  the  days 
and  times  aforesaid,  did  and  still  do  arise  and  proceed,  whereby  the 
air  there  was  and  still  is  corrupted,  infetid  and  infected,  and  the 
healths  of  the  liege  citizens  of  this  commonwealth  there  inhabiting, 
residing  and  passing,  have  been  and  still  are  endangered  and  im- 
paired, to  the  great  damage  and  common  nuisance  of  all  citizens  of 
this  comomnwealth  there  inhabiting,  residing  and  passing,  to  the  evil 
example,  &.c.,  against,  &c!     [Conclude  as  in  book  1,  chap.  3). 

{q)  State  v.  Wilkinson,  2  V'erm.  480. 

(r)  This  indictment  was  framed  in  1810,  by  P.  A.  Browne,  Esq.,  then  prosecuting  at- 
torney in  Pliiladclphia. 

35* 


414  OFFENCES  AGAINST  SOCIETY. 

For  stoppivg  an  ancient  water- cour&ey  irherehy  the  valer  overjloiced  the 
adjoining  highuay  and  damaged  the  sa/ne.^is) 

That  P.  Q.,  late  of,  &c.,  on,  &.C.,  with  force  and  arms  at,  &.C.,  a 
certain  ancient  water-course  adjoining  to  a  common  public  highway, 
within  the  same  parish,  leading  from  the  said  town  of  B.  in  the 
county  aforesaid,  towards  and  into  the  city  of  G.,  in  the  County  of 
G.  aforesaid,  with  gravel  and  other  materials,  unlawfully  and  inju- 
riously did  obstruct  and  stop  up,  and  the  said  water-course  so  as  afore- 
said obstructed  and  stopped  up  from,  &c.,  aforesaid,  until  the  day  of 
the  taking  of  this  inquisition,  at,  kc,  aforesaid,  unlawfully  and  in- 
juriously did  continue,  by  reason  whereof  the  rain  and  waters  that 
were  wont  and  ought  to  flow  and  pass  through  the  said  water-course, 
on  the  same  day  and  year  aforesaid,  and  on  divers  other  days  and 
times  afterwards,  between  that  day  and  the  day  of  the  taking  of  this 
inquisition,  did  overflow  and  remain  in  the  said  common  highway 
there,  and  thereby  the  same  was  and  yet  is  greatly  hurt,  damaged, 
impaired  and  spoiled,  so  that  the  good  people  of  the  said  state,  through 
the  same  way,  with  their  horses,  coaches,  carts  and  carriages,  then 
and  on  the  said  other  days  and  times  could  not,  nor  yet  can  go,  re- 
turn, pass,  repass,  ride  and  labour  as  they  ought  and  were  wont  to 
do;  lo  the  great  damage  and  common  nuisance  of  all  the  good  people 
#f  the  said  state  through  the  same  highway  going,  returning,  passing, 
repassing,  riding  and  labouring,  and  against,  &c.  [Conclude  as  in 
book  I,  chap.  3). 

For  diverting  a  icater-course  running  into  a  public  pand  or  reservoir.{t) 

That  from  time  whereof,  &c,,  there  has  been  and  still  is  a  common 
water-course,  near  a  certain  place  called  F.,  within  the  parish  of  B., 
in  the  said  County  of  L.,  which  continually  during  all  the  said  time, 
at  all  times  of  the  year,  hath  run  and  been  used,  and  accustomed  and 
of  right  ought,  without  any  obstruction  or  impediment,  to  run  out  of 
a  certain  place  called  the  Great  Wash,  situate  and  being  in  the  parish 
of  S.,  in  the  county  aforesaid,  into  and  along  the  common  highway 
there,  leading  from  to  and  into  a  certain  pond  and  reser- 

voir in  the  said  common  highway  there,  and  from  the  said  pond  and 
reservoir  into  the  lands  of  II.  D.,  at  which  said  water-course,  pond 
and  reservoir,  the  inhabitants  of  the  said  parish  of  B.,  and  all  other 
the  cftizens  of  the  said  state,  in  and  lln-ough  the  said  common  high- 
way passing  and  repassing,  all  the  said  time  have  used,  and  of  right 
been  accustomed  to  water  their  horses  and  other  cattle  at  their  free 
will  and  pleasure.  And  (he  jurors,  &c.,  present  that  P.  Q.,  late  of, 
&c.,  on,  &c.,  at,  &c.,  aforesaid,  in  and  across  the  said  water-course, 
in  the  said  highway  there,  a  certain  mound,  bank  or  dam  did  then 
and  there  make,  erect  and  build,  and  the  same  did  raise  so  high,  that 
the  said  water  in  its  said  ancient  course  was  obstructetl,  and  into  the 
said  pond  and  reservoir  did  not  run  as  it  was  used  and  accustomed 
and  ought  lo  do,  so  that  the  inhabitants  of  the  said  parisli  and  all 

(s)  Dickinson's  Q.  S.  Tlli  cd.  419.     Sec  for  unotlacr  forru  for  same,  p.  41 C. 
(/;  Dickiusoii's  (4.  S.  Glii  cd.  4;.W. 


NUISANCE.  415 

Other  the  citizens  of  the  said  state  in  and  through  the  said  common 
highway  passing  and  repassing,  were  and  still  are  deprived  of  the 
nse  of  the  said  pond  and  reservoir  of  water  for  their  cuttle,  and  hin- 
dered from  enjoying  the  same  as  they  ought  and  were  wont  to  do  ; 
to  the  great  damage  and  common  nuisance,  not  only  of  all  the  inhabi- 
tants of  the  said  parish  of  B.,  but  of  all  other  the  citizens  of  the  said 
state,  in  and  through  the  said  common  highway  passing  and  going, 
and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

For  obstructing  a  water- course,  called  ^'' Peg's  Run.*\u) 

That  S.  G.,  late  of,  &c.,  yeoman,  on,  &:c.,  at,  &c.,  unlawfully  and  in- 
juriously did  put  and  place  divers  quantities  of  earth,  gravel  and  other 
materials  on  a  piece  of  land  adjoining  the  public  highway,  and  near 
a  certain  ancient  water-course  called  Peg's  Run,  there  benig,  and  the 
same  from  the  year  and  day  aforesaid,  to  the  day  of  taking  tliis  in- 
quisition, did  and  yet  doth  injuriously  and  unlawfully  continue,  by 
reason  whereof  the  rain  and  waters  which  were  wont  and  ought  to 
flow  and  pass  to  and  through  the  same  water-course,  on  the  said  first 
mentioned  day  and  year,  and  at  divers  other  days  and  times  after- 
wards between  that  day  and  the  taking  of  this  inquisition,  did  over- 
flow and  remain  on  the  said  piece  of  ground,  and  then  and  there  and 
at  the  said  days  and  times  did  become  stagnant,  putrid  and  noxious, 
from  whence  unwholesome  damps,  ibgs  and  smells  did  arise,  whereby 
the  air  was  greatly  corrupted  and  infected,  to  the  great  damage  and 
common  nuisance  of  the  liege  subjects  of  this  commonwealth  dwell- 
ing thereabouts,  and  all  others  passing  and  repassing  on  the  said 
liighway  and  near  the  said  stagnant  waters,  and  against,  «kc.  (Con- 
clude as  in  book  1,  chap.  3). 

Second  count. 

That  the  said  S.  on,  &c.,  at,  &.C.,  unlawfully  and  injuriously,  a  cer- 
tain ancient  water-course  called  Peg's  Run  with  earth,  gravel  and 
other  materials  did  obstruct  and  stop  up,  by  reason  whereof  the  rains 
and  waters  that  used  to  flow  through  the  same  water-course  did 
overflow  the  adjacent  lands,  and  remain  and  become  putrid,  stagnant 
and  noxious,  and  did  send  forth  unwholesome  and  infectious  damps, 
fogs  and  smells,  whereby  the  air  was  greatly  corrupted  and  infected, 
to  the  great  damage,  &.C.,  and  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 

Far  permitting  waters  of  a  mill  to  overJlow.{v) 

That  A.  B.,  "being  possessed  of  a  certain  mill  and  mill-dam  with 
their  appurtenances,  situate  near  and  adjacent  to  a  certain  common 
highway  and  public  road,  and  the  dwelling  houses  of  divers  of  the 
good  citizens  of  this  commonwealth,"  did  on,  &c.,and  on  divers  days 
before  and  since,  unlawfully  and  injuriously  permit  the  water  of  the 
mill-pond  to  overflow  the  adjacent  lands,  as  well  of  others  as  his 
own,  and  also  the  public  road  or  highway,  by  means  whereof  the 

(u)  Framed  by  Mr.  Bradford  in  1784, 

(cj  This  count  was  sustained  in  Virginia,  on  demurrer,  in  Stephen  v.  Cora.,  2  Ltiyh 
751i. 


416  OFFENCES  AGAIXST  SOCIETY. 

land  so  overflowed  was  rendered  and  kept  marshy,  and  filled  and 
covered  with  noxious  weeds  and  putrid  vegetation,  whereby  the  air 
became  corrupted  and  infected,  to  the  great  damage  and  common 
nuisance,  &.c. 

For  obstructing  an  ancient  water-course,  whereby  a  public  highway  was 
overjiowed  and  spoiled.{w) 

That  P.  A.,  late  of,  &c,,  yeoman,  on,  &c.,  at,  &c.,  a  certain  ancient 
water-course  called  the  Raystown  branch  of  Juniata,  and  a  certain 
other  ancient  water-course  called  Danning's  creek,  which  said  ancient 
water-course  called  the  Raystown  branch  of  Juniata,  running  from 
Londonderry  township  in  the  county  aforesaid,  and  which  said  an- 
cient water-course  called  Danning's  creek,  running  from  St.  Clair 
township  in  the  county  aforesaid,  and  uniting  in  and  running  through 
Bedford  township  in  the  county  aforesaid,  and  running  between  the 
said  townships  of  Londonderry  and  St.  Clair  and  the  township  of 
Hopewell  in  the  said  county,  across  and  through  which  the  common- 
wealth's highway,  or  a  road  leading  from  the  town  of  Bedford  in  the 
county  aforesaid,  towards  and  unto  the  crossings  of  Juniata  in  the 
county  aforesaid,  was  laid  out  in  due  form  of  law,  did  obstruct  and 
stop  up,  and  the  said  water-courses  so  as  aforesaid  obstructed  and 
stiopped  up  from  the  said,  &c,,  vuitil  the  day  of  the  taking  of  this  in- 
quisition, at  the  townsliip  of  Bedford  in  the  county  aforesaid,  unlaw- 
lully  and  injuriously  hath  continued  and  still  doth  continue,  hy  rea- 
son whereof,  the  rain  and  waters  that  were  wont  and  ought  to  flow 
and  pass  through  the  said  water-courses,  on  the  same  day  and  year 
and  divers  other  days  and  times  afterwards  between  that  day  and 
the  day  of  the  taking  of  this  inquisition,  did  overflow  and  remain  in 
the  commonwealth's  highway  or  road  aforesaid,  in  the  township  of 
Bedford  aforesaid,  and  thereby  the  same  highway  or  road  was  and 
yet  is  greatly  hurt  and  spoiled,  so  that  the  liege  subjects  of  the  com- 
monwealth, through  the  same  highway  or  road,  with  their  horses,* 
coaches,  carls  and  carriages,  then  and  at  other  days  and  times,  could 
not  nor  yet  can  go,  return,  pass,  ride  and  labour  as  they  ought  and 
were  wont  to  do,  to  the  great  damage  and  common  nuisance  of  all 
the  liege  subjects  of  the  commonwealth  through  the  same  highway 
or  road  goiny:,  returning,  passing,  riding  and  labouring,  and  against, 
Slc.     [Conclude  as  in  book  1,  chap.  3). 

For  erecting  a  dam  on  a  navigable  river. (x) 
That  defendant  on,  &c.,  at,  &c.,  did  erect  and  build,  set  up,  repair 

(w)  R.  V.  Arnold,  3  Ycatos  417.  This  indictment  was  sust;uncd  by  Ycates  and  Smith, 
Justices,  at  a  circuit  court  in  Hcdford,  lH((i2.  It  was  held  that  it  was  not  necessary  to 
state  how  far  in  Icngtii  or  breadth  the  water  stood  on  the  road.    Seb  ante,  p.  414. 

(a?)  Coin.  V.  Church,  1  |{arr  105.  Tiiis  indictment  was  quasiied  by  tiie  Quarter  Ses- 
sions of  Dauphin  County,  on  the  ground  tliat  the  proceeding  was  not  in  accordance  with 
the  act  o('2'2(\  March,  180.'!,  which  prescribed  the  only  nictii(K]  by  wliieli  such  a  nuisance 
could  be  abated.  The  judgment  was  rcv(;rsed  by  the  Supreme  Court,  which  held,  that  a 
dam  in  a  streatn  which  was  a  highway,  was  jiiinia  facie  iiidictalile  as  a  nuisance,  ndt  in 
suljordinatiori  to  the  act  of  1803,  but  aceoiding  to  the  course  of  the  common  law.  Tiiis  iii- 
dictmenl,  however,  was  not  examined  in  any  other  aspect. 


NUISANCE. 


417 


and  maintain,  a  certain  dann  of  the  length  of  one  hundred  feet,  of  the 
breadth  of  twelve  feet  and  of  the  height  of  six  feet,  in  the  river 
Swatara,  in  the  township  of  Lower  Swatara  in  the  county  aforesaid, 
and  in  that  part  of  said  river  declared  by  ati  act  of  assembly  of  the 
Commonwealth  of  Pennsylvania,  a  public  stream  and  common  high- 
way, within  and  across  a  part  of  the  said  river  Swatara,  within  the 
township  of  Lower  Swatara  and  the  county  aforesaid,  by  means  of 
which  the  navigation  and  free  passage  of,  in,  through,  along  and 
upon  said  river  Swatara  is  greatly  obstructed;  and  the  said  dam  so  as 
aforesaid  erected,  built  and  set  up,  did  repair,  maintain  and  continue, 
from  the  said,  &c.,  until  the  day  of  the  taking  of  this  inquisition,  with 
force  and  arms,  at  the  township  and  county  aforesaid,  and  the  same 
dam  does  still  keep  up,  maintain  and  continue,  to  the  great  damage 
and  common  nuisance,  obstruction  and  impediment  of  all  the  good 
citizens  of  this  commonwealth  passing  and  navigating  on  and  through 
the  said  public  stream  and  highway,  with  their  arks,  craft,  boats  and 
vessels,  about  their  necessary  business,  with  their  goods  and  chattels 
and  merchandise,  contrary,  &c.,  to  the  evil  example,  &c.,  and  against, 
&c.     [Conclude  us  in  book  1,  chuji.  3). 

For  erecting  obstructions  on  a  navigable  river. (ij) 

That  a  certain  part  of  the  river  situate  and  being  betv/een 

and  and  also  wholly  situate  and  being  in  the  said  county 

of  is,  and  from  time  whereof  the  memory  of  man  is  not  to  the 

contrary,  hath  been  an  ancient  river,  and  an  ancient  and  common 
highway  for  all  the  citizens  of  said  commonwealth  with  their  ships, 
lighters,  boats  and  other  vessels  to  navigate,  sail,  row,  pass  and 
repass,  and  labour  at  their  will  and  pleasure,  without  auy  impediment 
or  obstruction  whatever.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  A.  B.,  late  of,  &c.,  at,  &:c.,  fisherman, 
on,  &c.,  and  on  divers  other  days  and  times  between  that  day  and  the 
day  of  the  taking  of  this  inquisition,  at,  &c,,  in  the  said  county  of 
unlawfully,  wilfully  and  injuriously  did  erect,  place,  fix,  put 
and  set  in  the  said  river  and  ancient  and  common  highway  there,  a 
certain,  {here  describe  the  obstruction  according  to  the  fact),  and 
that  the  said  A.  B.,  from  the  day  and  year  first  aforesaid,  hitherto^,  at, 
&c.,  atbresaid,  the  said  unlawfully,  wilfully  and  injuriously  hath 

continued,  and  still  doth  continue,  so  erected,  placed,  fixed,  put  and 
set  in  the  said  river  and  ancient  and  common  highway  aforesaid;  by 
means  whereof  the  navigation  and  free  passage  of,  in,  through,  along 
and   upon  the  said  river  and  ancient  and  common  highway 

there,  on  the  same  day  and  year  aforesaid,  and  from  thence  hitherto 
hath  been,  and  still  is  greatly  obstructed,  straitened  and  confined;  so 
that  the  citizens  of  said  commonwealth  navigating,  sailing,  rowing, 
passing,  repassing  and  labouring  with  their  ships,  lighters,  boats  and 
other  vessels  in,  through,  along  and  upon  the  said  river  and  ancient 
and  common  highway  there,  on  the  same  day  and  year  aforesaid, 
and  from  thence  hitherto,  could  not  nor  yet  can  navigate,  sail,  row, 

(y)  Taken  by  Mr,  Davis,  Free.  190,  from  2  Stark.  GGl. 


418 


OFFENCES  AGAINST  SOCIETY. 


pass,  repass  and  labour  with  their  ships,  lighters,  boats  and  other 
vessels,  upon  and  about  their  lawful  and  necessary  business,  affairs 
and  occasions,  in,  through,  along  and  upon  the  said  river  and  ancient 
and  common  highway  there,  in  so  free  and  uninterrupted  a  manner 
as  of  right  they  ought,  and  before  have  been  used  and  accustomed  to 
do;  to  the  great  damage  and  common  nuisance  of  all  the  citizens  of 
said  commonwealth  navigating,  sailing,  rowing,  passing,  repassing 
and  labouring  with  their  ships,  boats,  lighters  and  other  vessels  in, 
through,  along  and  upon  the  said  river  and  the  ancient  and 

common  highway  there;  to  the  great  obstruction  of  the  trade  and 
navigation  of  and  upon  the  said  river,  and  against,  &c.  [Conclude 
as  in  book  1,  chap.  3), 

For  obstructing  a  river  which  is  a  'public  highway,  by  erecting  a  fish  trap 
or  snare  in  it  called  "  putts.''\z) 

That  the  river  Severn,  that  is  to  say,  that  a  certain  part  of 
the  said  river  lying  and  being  in  the  County  of  Gloucester,  is, 
and  from  the  time  whereof  the  memory  of  man  is  not  to  the 
contrary  hath  been  an  ancient  river,  and  the  ancient  and  com- 
mon highway  lor  all  the  good  people  of  the  said  state,  with  their 
ships,  barges,  lighters,  boats,  wherries  and  other  vessels  to  navigate, 
sail,  row,  pass,  repass  and  labour,  at  their  will  and  pleasure,  without 
any  impediment  or  obstruction  whatsoever.  And  the  jurors  afore- 
said upon  their  oath  aforesaid,  do  further  present,  that  J.  S.,  late  of 
the  parish  of  B.  in  the  county  aforesaid,  fisherman,  on,  &c.,  and  on 
divers  other  days  and  times  between  that  day  and  the  day  of  taking 
of  this  inquisition,  with  force  and  arms,  at  the  parish  aforesaid  in  the 
county  atbresaid,  unlawfully,  wilfully  and  injuriously  did  (erect,  fix, 
put,  place  and  set  up  in  the  said  river  and  ancient  and  common 
highway  there  near  a  certain  place  called  Gay's  Spard,  a  certain 
snare,  trap,  machine  and  engine  commonly  called  putts,  for  the  taking 
and  catching  of  fish,  and  composed  of  wood,  wooden  stakes  and 
twigs;  and  that  he  the  said  J.-S.,  on,  &c.,  in  the  year  last  aforesaid 
and  on  divers  other  days  and  times  between  that  day  and  the  day 
of  the  taking  of  this  inquisition,  at  the  parish  aforesaid  in  the  county 
aforesaid,  in  the  said  river  and  ancient  and  common  highway  there, 
the  said  snare,  trap,  machine  and  engine  called  putts,  unlawfully, 


(z)  Tliis  form  is  taken  from  Arch.  C.  P.  .5th  Am.  ed.  757.  The  indictment  is  at  com- 
mon law,  and  the  f)unislimcnt  is  fine  or  imprisonment,  or  both.  Mr.  Archbold  remarks, 
tliiit  to  divert  a  i)art  of  a  |)iiblic  river,  wliereby  the  current  of  it  is  weakened  and  rendered 
iiic:i()al)le  of  carrying  vessels  of  the  same  burllien  as  it  could  before,  is  a  common  nuisance; 
1  Hawk.  c.  7.'),  s.  11  ;  but  if  a  sliip  or  other  vessel  sink  by  accident  in  a  river,  although 
it  obstructs  the  navio;;Uion,  yet  tlie  owner  is  not  indictable  as  for  a  nuisance,  for  not  re- 
inovintr  it;  R.  w.  Watts,  2  Esp.  G?."} ;  s(!(^  R.  ?).  Russel  and  others,  i)  D.  it  R.  56f) ;  6  B.  & 
< :.  .'■.Ob ;  U.  ».  Ward,  4  A.  &l  E.  :1«4  ;  (i  N.  &.  M.  3S;  R.  v.  Tindall,  1  N.  «&  P.  71!) ;  6  A. 
fi,  E.  1  1.3;  R.  15.  .Morris,  1  B.  &.  Ad.  441  ;  R.  v.  liandall,  C.  &,  M.  41)0. 

The  procedure  by  indictment  at  common  law,  is  still  in  force  in  Pennsylvania,  not- 
with.standiri<r  tiic  cumulative  remedies  frjven  by  statute.  In  Massachusetts  the  provincial 
Htatute  ol  H  AniK,-,  c  .3,  for  preventing  obstructions  in  rivers,  remains  in  full  vigour;  Com, 
1).  F^ugglos,  H)  Mass.  3:) I;  though  a  transient  and  temjiorary  scin  or  net  is  not  within 
the  act;  Hi.    But  no  indictment  lies  for  obstructing  a  stream  not  navigable, 


NUISANCE.  419 

wilfully  and  injuriously  did  continue,  and  still  doth  continue,  so 
erected,  fixed,  put,  placed  and  set  in  tiie  said  river  and  ancient  and 
common  highway  as  aforesaid);  by  means  whereof  the  navigation 
and  free  passage  of,  in,  through,  along  and  upon  the  said  river  Severn 
and  the  ancient  and  common  highway,  on  the  day  and  year  afore- 
said and  on  the  said  other  days  and  times,  hath  been,  and  still  is 
greatly  straitened,  obstructed  and  confined,  to  wit,  at  the  parish  afore- 
said in  the  county  aforesaid,  so  that  the  good  people  of  the  said  state 
navigating,  sailing,  rowing,  passing,  repassing  and  labouring  with 
their  ships,  barges,  lighters,  boats,  wherries  and  other  vessels  in, 
through,  along  and  upon  the  said  river  and  ancient  and  common  high- 
way there,  on  the  same  day  and  year  aforesaid,  and  on  the  said 
other  days  and  times,  could  not  nor  yet  can  go,  navigate,  sail,  row, 
pass,  repass  and  labour  with  their  ships,  barges,  lighters,  boats,  wher- 
ries and  other  vessels,  upon  and  about  their  lawful  and  necessary 
affairs  and  occasions,  in,  through,  along  and  upon  the  said  river  and 
ancient  and  common  highway  there,  m  so  free  and  uninterrupted  a 
manner  as  of  right  they  ought,  and  before  have  been  used  and  accus- 
tomed to  do ;  to  the  great  damage  and  common  nuisance  of  all  the 
good  people  of  the  said  state  navigating,  sailitig,  rowing,  passing,  re- 
passing and  labouring  with  their  ships,  barges,  lighters,  boats,  wher- 
ries and  other  vessels  in,  through,  along  and  upon  the  said  river 
Severn  and  ancient  and  common  highway  there,  to  the  great  obstruc- 
tion to  the  trade  and  navigation  of  and  upon  the  said  river,  to  the  evil 
example,  &c.,  and  against,  &.c.     [Conclude  as  in  book  1,  chap.  3). 

For  damming  creek. (a) 

That,  &c.,  on,  &c.,  at,  &c.,  did  unlawfully,  injuriously  and  know- 
ingly erect,  or  cause  to  be  erected^a  certain  dam  across  the  Ononda- 
gua  creek,  a  common  and  ancient  water-course,  at  the  town  of  Salina, 
&.C.,  by  means  of  which  the  water  flowing  in  the  creek  was  stopped, 
dammed  up,  &c.,  and  flowed  back  in  and  up  the  surface  of  large 
tracts  of  adjoining  land,  by  means  whereof  the  mud,  wood,  leaves, 
brush,  and  the  animal  and  vegetable  substances  and  other  filth  col- 
lected and  brought  down  the  channel  of  said  water-course  by  the  na- 
tural flowing  of  the  waters,  then  became  and  were,  during  all  the 
time  aforesaid,  collected  and  accumulated  in  large  quanties  in  the 
chaimcl  of  the  said  water-course,  and  on  the  lands  overflowed  as 
aforesaid;  and  the  said  mud,  wood,  &,c.,  so  there  collected,  &,c.,  be- 
came and  were  and  ?till  are  very  ofl'ensive,  and  the  waters  became 
and  are  corrupted;  and  by  means'  whereof  divers  nauseous,  unwhole- 
some and  deleterious  smells  and  stenches  did  arise,  &c.,  so  that  the 
air  was  and  still  is  corrupted  and  infected,  to  the  great  damage  and 

(o)  People  V.  Townscnd,  3  Hill's  R.  479.  This  count  seems  to  have  been  sustained  by 
the  Supreme  Court,  who  held,  Bro:ison  J.  dissentinor,  tliat  the  allci^ation  that  by  reason  of 
the  dam,  the  animal  and  ve}retable  substances  brounlit  down  the  stream  were  c  dlerted  and 
accumulated  in  large  quantities,  and  become  offensive,  and  corrupted  the  water,  &c.,  was 
sustained  by  proof  showing-  tlie  injury  to  have  resulted  from  tiie  alternate  rise  and  fall  of 
the  water  in  the  pond,  or  from  the  action  of  the  sun  upon  the  vegetables  growing  on  the 
margin,  &.c. ;  and  this,  notwitlistanding  the  stream  on  which  the  dam  stood,  was  not  a 
public  higiuvay. 


420  OFFENCES  AGAINST  SOCIETY. 

common  nuisance  of  the  good  and  worthy  citizens  of  this  state  there 
passing  and  repassing,  dwelling  and  inhabiting,  &c.,  and  against,  &,c. 
{Conclude  as  in  book  1,  chap.  3). 

Obstruction  offish  in  the  river  Susquehanna,  under  the  act  of  9th  March, 
1771. (Z>) 

That  on,  &c.,  at,  &c.,  A.,  &c.,  did  erect,  build,  set  up,  repair  and  main- 
tain, and  did  assist  and  abet  in  erecting,  building,  setting  up,  repair- 
ing and  maintaining  a  certain  mound,  made  of  logs  and  stones,  of  the 
height  of  seven  feet  and  length  of  eighteen  yards,  commonly  called  a 
fishing  battery  or  wharf,  in  the  river  Susquehanna,  in  that  part 
thereof  declared  to  be  a  public  highway,  to  wit,  between  Burkhold- 
er's  island  and  the  eastern  shore  of  the  said  river,  in  the  said  township 
and  county,  for  the  taking  of  fish  in  the  said  river;  and  the  said 
mound,  made  and  erected  as  aforesaid,  from  the  said,  &c,,  until  the 
day  of  taking  this  inquisition,  with  like  force  and  arms,  at  the  town- 
ship aforesaid,  have  kept  up  and  still  do  keep  up,  to  the  great  ob- 
struction and  hinderance  of  the  fish,  fry  and  spawn  in  passing  up 
and  down  said  river,  and  to  the  common  nuisance  of  all  the  liege 
citizens  of  this  commonwealth,  contrary,  &c.  ( Conclude  as  in  book  1, 
chap.  3). 

For  obslructivg  a  harbour  by  erecting  in  it  piles,  ^^c.[c) 

That  before  the  committing,  &.c.,  to  wit,  from  time  whereof,  &c., 
hitherto,  there  has  been  and  was  and  still  is  a  certain  ancient  port 
and  harbour,  commonly  called  the  harbour  of  Scarborough  in  the 
County  of  York,  to  wit,  at  Scarborough  within  the  said  county,  used 
by  the  liege,  &c.,  for  the  purposes  of  safe  and  commodious  naviga- 
tion, for  the  iujportation  and  exportation  of  goods,  and  for  the  receiv- 
ing and  sheltering,  in  times  of  tempests  and  other  times  of  danger 
and  distress  of  weather,  ships  and  vessels  navigating  to  and  along  the 
northern  coasts  of  that  part  of  the  united  kingdom  called  England, 
and  to  and  from  the  eastern  seas  and  other  places;  that  the  defend- 
ants, well  knowing,  &,c.,  on,  &c.,  and  on  divers  other  days  and  times 
between  that  day  and  the  day  of  the  taking  of  this  inquisition,  to  wit, 
on  each  and  every  day  between,  &c.,  with  force,  itc,  within  the 
said  County  of  Y.,  to  wit,  at,&c.,  unlawfully,  wilfully  and  injuriously 
did  erect,  place^  fix,  put,  sink  and  set  in  the  said  port  and  harbour,  and 
in  the  sea  near  to  the  shore  with  the  said  port  and  harbour,  divers 
stages,  erections  and  buildings  projecting  into  the  said  port  and  har- 
bour, composed  of  piles,  posts,  planks  and  timbers,  and  also  divers 
large  quantities  of  earth,  stones,  sand  and  rubbish,  to  wit,  one  hun- 
dred thousand  cartloads  of,  &c.;  and  unlawfully  and  injuriously  kcjH 
and  continued  and  caused  and  procured  to  be  kept  and  continued,  the 

{h)  Werfcl  V.  Com.,  5  Binn.  05.  The  iiuiictmciit  was  held  to  set  fortli  properly  the 
offence  created  by  the  fourth  section  of  the  act  of  !ith  March,  1771. 

(c)  R.  ».  Tindall,  6  A.  &,  E.  143.  A  s])ccial  verdict  was  rendered  on  which  a  verdict 
of  not  guilty  was  entered.  There  accins  to  have  been  no  doubt,  however,  tiiat  tlie  tacts 
set  fortli  in  the  indictment,  formed  a  criminal  offence. 


KUISA.VCE.  421 

said  stages,  &c.,  so  projecting  info  the  said  port  and  harbour  as  afore- 
said, and  the  said  piles,  &c.,*so  erected,  &c.,  in  the  said  port  and  har- 
bour and  in  the  sea  near  to  the  shore  in  the  said  port  and  harbour, 
for  a  long  space  of  time,  to  wit,  from  thence  hitherto  within  the 
county  aforesaid,  to  wit,  at,  &c. ;  and  thereby,  during  the  time  afore- 
said, greatly  obstructed,  choked  up,  narrowed  and  otherwise  injured 
the  said  port  and  harbour  and  rendered  the  same  insecure  and  incom- 
modious, whereby  the  said  port  and  harbour  then  and  there  became 
and  was  and  from  thence  hath  been  and  still  is  greatly  obstructed  and 
choked  up,  narrowed  and  rendered  insecure  and  incommodious,  so 
that  the  good  people  of  said  state  could  not,  nor  yet  can,  use  the  said 
port  and  harbour  for  tl^je  exportation  and  importation  of  goods  and 
merchandises  there  and  for  the  receiving  and  sheltering  of  ships  and 
vessels  in  times  of  tempests  and  other  times  of  danger  and  distress  of 
weather,  and  for  other  purposes  of  safe  and  conmiodious  navigation, 
and  could  not  and  cannot  use  the  said  port  and  harbour  without  im- 
minent hazard  and  danger  of  destruction  of  their  ships,  lighters,  boats 
and  other  vessels,  and  danger  and  peril  of  the  lives  of  those  navigat- 
ing the  same,  and  loss  and  damage  of  the  goods  and  merchandises 
laden  on  board  thereof,  to  the  great  damage  and  common  nuisance, 
&c.,  and  other  persons  using  the  said  port  and  harbour  as  aforesaid, 
against,  &c.    {^Conclude  as  in  book  \,  chcqj.S).  % 

For  negligently  ■permitting .  fences  to  remain  during  the  crop  season  less 
than  five  feet  high,  under  .the  North  Carolina  statute. (d) 

That  N.  B.,  late  of,  &c.,  on,  &c.,  aud  continually  before  and  after 
that  time,  during  the  crop  season  of  the  year,  then  and  there  being 
the  occupier  and  cultivator  of  a  farm  as  owner  of  the  same,  and  being 
bound  during  the  said  crop  season  to  keep  up  his  fences  around  his 
cultivated  fields  five  feet  high,  unlawfully,  wilfully  and  negligently 
did  permit  his  said  fences  around  his  said  fields  to  be  and  remain 
during  crop  season  of  the  year  aforesaid,  less  than  five  feet  high, 
there  being  no  navigable  stream  nor  deep  water-course  around  the 
same,  to  the  common  nuisance,  &c.,  contrary,  &c.,  and  against,  &c. 
[Conclude  as  in  book  1,  chap.  3). 


General  form  for  nuisances  in  carrying  on  unicholesome  occupations 
near  to  habitations  or  public  icays.{e) 

That  A.  B.,  late  of,  &,c.,  yeoman,  on,  vfec,  and  on  divers  days  and. 
times  between  that  day  and  the  day  of  the  taking  of  this  inquisition, 

(J)  Stale  V.  Bell,  3  Iredell  506. 

(e)  The  features  peculiar  to  these,  as  well  as  to  all  other  kind  of  nuisances,  have  been 
already  specified,  ante  p.  402.  It  remains  to  notice  the  general  character  of  the  otfences 
themselves.  Any  trade,  however  innocent  in  itself,  and  useful  in  its  objects,  will  be  a 
nuisance  if  carried  on  in  an  improper  place  to  the  injury  of  the  health  or  quiet  of  a 
neighbourhood;  Lansings.  Smith,  8  Cow.  146.  And  if,  as  in  the  case  of  stench  pro- 
duced in  a  manufacture,  the  effect  be  not  to  render  the  adjacent  places  of  residence  abso- 
lutely unwholesome,  but  to  make  the  comfortable  enjoyment  of  life  and  property  impossi- 
ble to  a  number  of  persons,  the  same  liability  will  be  incurred;  R.  v.  Wiiite  and  Ward,  1 
Burr.  R.  333;  R.  v.  Davcy,  5  Esp.  217;  R.  v.  Neil,  2  C.  &,  P.  485;  People  v.  Cunning. 
36 


422  OFFENCES  AGAliVST  SOCIETY. 

with  force  and  arms,  at,  &c.,  in  the  near  neighbonrhood  of  divers 
public  streets  in  the  said  county,  where  divers  good  citizens  of  the 

ham,  1  Dcnio  524 ;  Com.  v.  Vansyckle,  7  Pa.  L,  J.  82.  It  admits  of  some  question,  wlicther 
where  health  is  not  aifccted,  tiie  public  good  resulting  from  an  establishment  in  some  re- 
spects olfensive  may  be  taken  into  consideration  by  the  jury  in  determining  wliether,  on 
the  whole,  it  ought  to  be  suppressed  as  a  nuisance  to  the  public.  See  1  Russ.  on  Criims 
297.  In  a  late  case  of  mucli  consideration.  Rex  v.  Ward,  4  A.  &  E.  384;  it  was  held,  to 
be  no  answer  to  an  indictment  for  a  nuisance  in  a  harbour,  by  erecting  an  embankment, 
that  although  the  work  was  in  some  degree  a  hinderance  to  navigation,  it  was  advantageous 
in  a  greater  degree  to  other  uses  of  the  port;  R.  v.  Tindall,  6  A.  «t  E.  143;  R.  v.  Morns, 
1  B.  «fe  Ad.  441.  In  an  early  case  in  Pennsylvania,  the  defendant  being  charged  with  a 
nuisance  in  the  erection  of  a  wharf,  offered  witnesses  to  prove  that  the  wharf  had  been 
beneficial  to  the  public,  and  therefore  not  to  be  rctgardcd  as  a  nuisance;  but  M'Kean  C.  .1. 
said,  "this  would  only  amount  to  matter  of  opinion,  whereas  it  is  on  facts  the  court  must 
proceed  ;  and  the  necessary  facts  arc  already  in  proof  Besides  it  would  be  no  justifica- 
lion.  The  evidence  is  inadmissible;"  Cal-dwell's  case,  1  Dall.  150.  See  also  Com.  v.  Van- 
syckle, 7  Pa.  L.  J.  82  ;  post,  p.  425.  Length  of  tiuTC  will  not  justify  a  public  nuisance  under 
any  cireumstances,  even  if  twenty  years'  aetiuiescence  concludes  private  rights  at  the  be- 
ginning of  that  period,  so  as  to  oust  all  remedy  by  action  ;  People  v.  Cunningham,  1  Denio 
524;Elkins  v.  State,  2  Humph.  543;  Mills  r.  Hall  and  Richards,  9  Wend.  315;  Com.  v.  AU 
burger,  1  Whart.  4B9  ;  Bliss  «.  Hall,  4  Bing.  N.  C.  185  ;  Com.  «.  Tucker,  2  Pick.  44;  Elliot- 
son  V.  Feetham,  2  Bing.  N.  C.  134;  1  Hawk.  b.  1,  c.  32,  s.  8;  Rex  v.  Cross,  3  Canipb.  227  ; 
Weld  V.  Hornby,  7  East  199;  Leeds  v.  Shakerley,  Cr.  El.  751.  It  is  true  that  in  R.  v. 
Neville,  Peake's  C.  N.  P.  91,  Ld.  Kenyon  said,  that  in  neighbourhoods  where  offensive 
trades  have  been  borne  with  for  many  years,  they  are  not  indictable  nuisances  unless 
materially  increased  by  a  new  manufacture-;  and  see  R.  c.  Watts,  M.  &  M.  281.  The 
practical  result  often  is  that  lenglh  of  time,  accompanied  by  particular  circumstances  of 
public  convenience  of  one  kind,  opposed  to  the  public  inconvenience  of  another,  will  some- 
times go  a  great  way  in  n)aking  both  judges  and  jurors  very  unwilling  to  convict.  One 
case  is  instanced  in  R.  v.  Smith,  4  Esp.  Ill,  and  another  is  continually  occurring  respect- 
ing the  subject  of  this  precedent;  viz.  the  deposit  of  dung,  fish,  sea-weed  and  other  des- 
criptions of  manure  for  siiort  [icriods  near  the  places  where  they  arc  collected,  in  order  to 
be  taken  to  neighbouring  fields  for  the  improvement  and  promotion  of  agriculture.  Large 
quantities  of  manure  are  frequently  collected  in  large  cities,  and  laid  in  heaps  on  the  banks 
of  canals  and  navigable  rivers,  for  conveyarrce  by  barges  and  boats.  In  these  and  such 
like  instances,  the  general  benefit  appears  to  counterbalance  the  local  inconvenience,  es- 
pecially if  the  offensive  matter  remain  no  longer  on  each  occasion  than  the  necessity  of 
the  case  requires.  But  see  R.  t.  Core  (the  Pudelock  case),  8  D.  P.  C.  102^  and  R.  v.  Pol- 
lock  and  others,  Q.  B.  Trin.  1838,  Gas  Works  in  Westminster  icferred  to  by  Mr.  Starkic  ; 
also  R.  V.  Ward,  4  A.  &.  E.  384;  6  N.  &.  M.  38.  It  seems,  however,  that  the  maxim  nic 
ulere  tuo  vi  alionvm  nun  laedas,  applies  as  soon  as  the  growth  of  human  habitations  near 
au  ofletisive  manufacture  makes  it  injurious  to  them;  see  Cooper  v.  Barba,  3  Taunt.  1  10 
(cited  1  B.  &.  Ad.  fSU) ;  Bliss  v.  Hall,  5  Scott  500;  4  Bing.  N.  C.  183,  S.  C. ;  Elliotson  v. 
Feetham,  2  tb,  1.34;  2  Scott  174;  see  Flight  v.  Thomas,  10  A.  &  E.  590 ;  Wh.  C.  L.  506. 

The  ofKn  carrying  on  of  scandalous  or  immoral  trades,  or  keeping  indecent  brothels, 
gaining  houses  and  disf)rderly  |ilae(s  of  resort  of  any  kind,  is  an  indictable  nuisance;  and 
in  the  case  of  brothels  and  gaming  hou.ses,  subjrcts  the  parties  offending,  in  England,  to  tlic 
punishment  of  hard  lal>our  ;  7  and  8  Ceo.  IV.  c.  29,  s.  4.  And  these  arc  offences  for  which 
a  married  woman  may  be  indicted,  cither  separately  or  jointly  with  iier  husband  ;  the 
charge  being  the  criminal  viainifreinenl  of  the  house,  which  the  law  presumes  to  be  prin- 
cipally in  the  woman's  department;  4  Bla.  C.  29;  R.  v.  Williams,  1  Salk.  383.  If  a  per- 
son, being  only  a  lodger  and  h;iving  only  a  singh^  room,  makes  use  of  it  for  the  purpose  of 
open  and  flagrant  inimoralily ,  so  as  to  annoy  the  neighbours,  the  occu))ier  may  be  indicted 
for  kee|iiiig  a  iiawdy  house,  as  if  the  wholi'  house  weic  so  tenanted  ;  R.  »;.  Pierson,  2  Ld. 
Rayui.  11!I7.  Bui  an  indictniirit  caiuiot  be  sustained  in  England  against  a  woman  for 
being  a  conimon  bawd,  and  inducing  parlies  to  meet  and  commit  fornication;  for  the  bare 
solicitation  of'cliastity  is  there  not  an  offence  at  common  law,  but  punishable  in  the  eccle- 
siastical courts;  Hawk.  b.  1,  c.  74.  In  this  country,  however,  from  the  absence  of  eccle- 
siastical courts,  the  law  is  otherwise,  as  not  only  is  the  solicitation  of  chastity  an  inde- 
pendent (jfl^cnce,  State  v.  Avery,  7  Conn.  2()7,  but  all  open  immorality,  whether  corisi.sting 
in  public  druiiketmess  or  public  lasciviousness,  is  indictable  us  a  nuisance,  as  will  be  no- 
ticed at  the  foot  of  next  page. 

At  coinmon  law,  as  will  be  seen,  it  is  an  indictable  offence  to  keep  a  house  of  ill-fame 
for  lucre;  Jennings  w.  Com.,  17  Pick.  80;  or  to  let  a  house,  knowing  it  so  to  be  used  ft)r  the 
jiurpn.'-cs  of  [irostitiilioii  ;  Com.  v.  Ilarriiiyton,  .3  Pick.  2() ;  lliouf;h  in  New  York  the  last 
point  was  ruled  ditlciently,  and  it  was  laid  down  that  to  rent  a  house  to  a  woman  of  ill- 


NUISAVCR.  4*23 

said  cominoiuveallh  are  constantly  passing  and  repassing,  and  of 
divers  dwelling  houses  in  tlie  said  county,  inhabited  and  occupied  by 
divers  other  good  citizens  aforesaid,  [here  state  the  nuisance),  to  the 

fame,  with  the  intent  that  it  sliould  be  kept  for  p:'rposea  of  public  prostitution,  is  not  an 
otfeiice  punishable  by  indictment,  thoug'h  it  be  so  kept  afterwards;  lirockway  v.  People,  2 
HiU  55d.  Perhaps,  however,  the  doctrine  held  in  the  latter  case  was  afterwards  somewhat 
qualified,  as  it  was  declared  tliat  when  it  appears  that  the  owner  of  lands  has  cither  erected 
a  nuisance  or  continued  it,  or  in  any  way  sanctioned  its  erection  or  continuance,  he  is  in- 
dictable;  People  v.  Townsend,  3  Hill  47!).  Owners  of  reversions  are  indictable  for  nuisance 
created  by  the  occupier's  use  of  premises  calculated  to  create  nuisance,  if  there  be  privity  of 
contract  between  them  ;  or  where  the  reversion  has  been  sold,  if  the  former  reversioner  was 
liable;  as  in  II.  ».  Pedley,  1  A,.  <fc  E.  822;  3  N.  &,  M.  627,  a  case  in  which  sinks  were 
left  in  a  iietrlected  state;  2  I<d.  Raym.  1089;  see  post,  p.  42\).  Ground  near  a  highway, 
within  two  miles  of  London,  was  kept  for  shooting'  at  targets  and  at  pigeons;  in  consequence 
of  which  numbers  of  persons  aissembled  outside  the  ground,  and  in  the  fields  adjacent,  to  shoot 
at  those  birds  which  escaped,  causing  thereby  great  noise  and  disturbance,  and  doing  injury 
witli  the  shots  fired.  The  owner  of  the  shooting  ground  was  indicted  for  causing  and 
occasioning  such  persons  to  assemble  near  and  about  his  premises,  discharging  fire-arms 
and  making  a  great  noise  and  riot,  whereby  tiie  king's  subjects  were  disturbed  and  put  in 
peril ;  and  it  was  held  that  he  was  so  indictable,  as  the  acts  of  such  persons  were  the  pro- 
bible  consequences  of  his  keeping  a  ground  for  shooting  pigeons  in  such  a  vicinage,  for 
which  he  is  answerable  as  if  it  was  his  actual  object;  K.  v.  Moore,  3  B.  &  Ad.  184. 
Drawing  together  by  whatever  means,  numbers  of  disorderly  persons,  as  by  ro[)e  dancing 
and  gaming  houses,'&c..,  cannot  but  be  inconvenient  to  tlie  neighbourhood,  and  is  indict- 
able; Hawk.  P.  C.  b.  1,  c.  75,  s.  6,  7 ;  Betterton's  case,  5  Mod.  142;  i^kinner  625. 

The  making  great  noises  in  the  night  time,  R.  v.  Smith,  2  Stra.  704;  exposing  persons 
infected  with  contagious  or  loathsome  diseases  in  public,  R.  v.  V'antandillo,  4  M.  &  S.  73; 
see  post,  p.  428  ;  and  keeping  ferocious  animals  without  proper  control,  Burns'  J.,  tit.  Nuis- 
ance I.,  are  indictable  nuisances. 

In  indictments  in  Massachusetts,  it  is  said,  it  is  sufficient  to  charge  the  defendant  with 
keeping  "  a  house  of  ill-fame,"  "  a  disorderly  house,"  or  "  a  common  gaming  house  ;"  Com. 
V.  Pray,  13  Pick.  359;  I  T.  R.  754.  An  indictment  charging  the  defendants  with  "keep- 
ing a  disorderly  house,  and  unlawfully  procuring,  for  his  lucre  and  gain,  men  and  women 
of  evil  name  and  fame  to  frequent  it  at  unlawful  times,  permitting  them  there  to  be  and  re- 
main drinking,  tippling  and  misbehaving  themselves,  to  the  great  damage  and  common  nuis- 
ance of  all  t!ie  liege  citizens,"  «fec.,  is  sufficient;  Com.  v.  Stewart,  1  S.  &  R.  342.  A  verdict 
finding  a  defendant  "guilty  of  keeping  a  disorderly  house  and  disturbing  his  neighbours," 
is  bad;  Hunter  v.  Com.,  2  S.  &  R.  298;  (but  see  Com. p.  Pray,  13  Pick.  359  ;  1  T.  R.754). 
And  where  the  defendant  was  indicted  for  keeping  "  a  disorderly  common  tijjpling  house," 
and  the  jury  found  a  special  verdict,  "  that  the  defendant,  on  one  occasion,  kept  a  house 
in  which  there  was  a  collection  of  twenty  or  thirty  negroes  more  than  belonged  to  the 
place,  who  got  drunk,  danced  and  disturbed  the  neighbourhood  with  noise  and  uproar;" 
it  was  held,  that  the  facts  found  by  the  special  verdict  did  not  constitute  the  offence  of 
keeping  "a  disorderly  common  tippling  house;"  Dunnaway  v.  State,  9  Yerg.  350.  Where 
an  indictment  charged  that  the  defendant  was  a  common,  gross  and  notorious  drunkard, 
and  that  he  on  divers  days  and  times  got  grossly  drunk,  the  judgment  was  arrested,  for 
private  drunkenness  is  not  an  indictable  offence;  it  becomes  so  by  being  open  and  exposed 
to  public  view,  so  as  to  become  a  nuisance;  State  v.  Waller,  3  Murph.  229.  An  indict- 
ment for  a  public  nuisance,  in  frequenting  and  haunting  houses  of  ill-fame,  must  expressly 
charge,  that  "the  defendant,  knowing  the  house  to  be  a  house  of  ill-fame,  did  openly  and 
notoriously  haunt  and  frequent  the  same ;"  Brooks  v.  State,  2  Yerg.  482 ;  sec  prr  contra. 
State  ».  C^aglf,  2  Humph:  414.  On  a  presentment  for  open  and  notorious  lewdness,  it  is 
no  defence  that  the  parties  verbally  contracted  marriage  and  lived  together  as  man  and 
wife,  according  to  the  common  law.  The  mode  of  contractinir  and  solemnizing  marriages,, 
prescribed  by  the  statute,  must  be  strictly  adhered  to,  otherwise  the  parties  are  liable  to 
indictment ;  Grisham  and  Jane  Ligan  v.  State,  2  Yerg.  589.  It  is  said  to  be  a  misde- 
meanor to  exhibit  stud  horses  in  a  city;  Nolin  v.  Mayor,  4  Yerg.  163.  An  indictment 
lies  against  a  master  for  permitting  his  slaves  to  pass  about  in  tlie  public  highway  in  a 
state  of  nakedness.  It  is  not  necessary  that  it  be  proved  tiiat  the  slave  did  exhibit  him  or 
herself  in  such  a  state  of  nakedness  by  any  command  of  the  master.  That  the  master 
caused  and  permitted  it,  may  be  inferred  from  circumstances  satisfictory  to  the  mind  of 
the  jury;  Britain  v.  State,  3  Humph.  203.  In  an  indictment  for  exposing  the  person,  it  is 
sufficient,  if  it  be  charged  to  have  been  done  "to  public  view  in  a  public  jilace."  It  is  not 
neee.s.sar y  to  aver  that  the  prisoner  was  seen  by  citizens ;  Stale  v.  Roper,  1  Dev,  &.  Bat. 
206. 


424  OFFEXCES  a(;ak\st  societv. 

great  damage  and  common  nuisance  of  all  the  good  citizens  of  this 
commonwealth,  there  inhabiting  and  residing,  passing  and  repassing, 
to  the  evil  example,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

For  carrying  on  the  trade  of  a  trunk  maker  near  to  houses,  so  as  to  be- 
come a  nuisance. (^f) 

That  A.  B,,  late  of,'  &c.,  on,  &c.,  and  on  divers  days  and  times 
between  that  day  and  the  taking  of  this  inquisition  at,  &c.,  in  a  certain 
workshop  there  situate,  near  the  dwelling  houses  of  divers  citizens  of 
the  said  state  and  also  divers  public  highways,  there  unlawfully  and 
injuriously  did  set  up,  exercise  and  carry  on  the  trade  and  business  of 
a  trunk  maker,  and  on,  &:c.,  and  on  the  other  days  and  times  aforesaid, 
there,  at  unseasonable  hours  in  the  morning  and  in  the  day  time,  and 
at  late  hours  of  the  nights  of  the  days  aforesaid,  unlawfully  and 
injuriously  did  make,  and  did  cause  and  procure  to  be  made,  divers 
loud  and  annoying  sounds  and  noises,  by  then  and  there  hammering 
and  striking,  and  causing  and  procuring  to  be  hammered  and  stricken, 
divers  trunks  and  boxes  made  of  wood,  iron  and  copper,  and  divers 
pieces  of  wood,  tin,  brass,  copper,  iron  and  other  metals,  with  divers 
large  hammers  and  other  instruments  made  of  wood  and  iron,  by 
reason  whereof  the  good  people  of  the  said  ^state  residing  in  the  said 
dwelling  houses  near  to  the  said  workshopj  on  the  several  days  and 
times  aforesaid,  were  and  still  are  greatly  annoyed,  disturbed  and 
incommoded  in  the  use,  occupation  and  enjoyment  of  their  said 
dwelling  houses,  and  greatly  interrupted  in  the  exercise  and  pursuit 
of  their  lawful  business  and  transactions,  and  deprived  of  their  natural 
sleep  and  rest  and  jendered  and  made  in  other  respects  uncomfortable, 
and  thereby  also  the  good  people  of  the  said  state,  in  and  through 
and  along  the  common  highway  aforesaid,  passing,  repassing  and 
travelling,  were  and  are  greatly  annoyed  and  disturbed;  to  the  great 
damage,  &:c,,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

For  erecting  a  soap  manufactory  near  a  highicay  and  dwelling  house.(g) 

That  A.  B.,  of,  &c,,  on,  &c.,  at,  &c.,  near  to  a  public  street  and 
common  highway  there,  and  also  near  to  "the  dwelling  houses  of 
divers  citizens  there  situate  and  being,  did  unlawfully  and  injuriously 
erect  and  build,  and  cause  and  procure  to  be  erected  and  built,  a  cer- 
tain building  for  the  purpose  of  making  and  manufacturing  soap 
therein,  and  did  unlawfully  and  injuriously  make,  set  up  and  place, 
and  did  cause  and  procure  to  be  made,  set  up  and  placed  in  the  said 
building,  divers  furnaces,  stoves,  cauldrons,  coppers  and  boilers,  to 
wit,  (here  insert  the  number  of  each,)  for  the  j)urpose  of  boiling, 
moiling  and  mixing  tallow,  soap-lees,  and  other  materials  used  in 
the  making  and  manulacturing  of  soaji;  and  tiiat  the  said  A.  B.  did, 

(/)  Dickinson'8  Q.  S.  6lh  ccl.  424, 

{rr)  'I'liis  iiidictiiHiit  is  tiikcii  by  Mr.  Dnvis,  Prcc.  191,  from  2  Stnr.k.  C.  P.  C57;  2  Chit. 
(i.>t,  CSf).  Add,  il'n(  ccss^ry,  anollier  count  lor  conliiiuiiig  Uic  building,  &c. ;  Ibr  a  prece- 
dent ibr  lliis,  see  2  Stark.  C.  P.  65d. 


NUISAVCE.  4"25 

on  the  day  and  year  aforesaid,  and  on  divers  other  days  and  timss 
between  that  day  and  the  day  of  the  taking  of  this  inquisition,  at, 
&c.,  unlawfully  and  injuriously  boil,  melt  and  mix  together,  and  did 
cause  and  procure  to  be  boiled,  melted  and  mixed  together  in  the 
said  furnaces,  stoves,  cauldrons  and  boilers  respectively,  so  made,  set 
up  and  placed  in  the  said  building  as  aforesaid,  divers  large  quan- 
tities of  tallow,  soap-lees  and  other  materials  used  in  the  making  and 
manufacturing  of  soap,  for  the  purpose  of  making  and  manufacturing 
the  same  into  soap;  and  did  then  and  there  make  and  manufacture, 
and  did  cause  and  procure  to  be  made  and  manufactured,  divers 
large  (quantities  of  soap  from  the  same  tallow,  soap-lees  and  other 
materials;  by  reason  of  which  said  premises,  divers  noisome  and 
unwholesome  smokes,  vapours,  smells  and  stenches,  on  the  days  and 
times  aforesaid,  were  emitted  and  issued  from  the  said  building,  so 
that  the  air,  on  the  several  days  and  times  aforesaid,  at  &c.,  was 
thereby  greatly  filled  and  impregnated  with  the  said  smokes,  vapours, 
smells  and  stenches,  and  was  rendered  and  became,  and  was  cor- 
rupted, offensive  and  unwholesome;  to  the  great  damage  and  com- 
mon nuisance  of,  &c.,  and  against,  &c.  [Conclude  as  in  book  \,chap.  3). 

For  keeping  gunpowder  in  a  city.Qi) 

That  C.  S.  and  L.  S.,  late  of,  &c.,  on,  &c.,  and  on  divers  other  days 
and  times  between  that  day  and  the  day  of  taking  this  inquisition, 
with  force  and  arms  at,  &c.,  near  the  dwelling  houses  of  divers  good 
citizens  of  the  state,  and  also  near  a  certain  public  street,  there  did 
(negligently  and  improvidently)  keep,  and  still  keep  and  maintain  in 
a  certain  house,  and  then  and  there  on  the  day  and  year  aforesaid,  at 
atbresaid,  unlawfully  and  injuriously  (negligently  and  im- 
providently), in  the  said  house  did  receive  and  keep,  and  still  keep, 
fifty  barrels  of  gunpowder  (tlie  said  house  being  then  and  there  in- 
secure and  unfit  for  the  reception  and  detention  of  gunpowder  as 
aforesaid),  whereby  divers  good  citizens  there  residing  and  passing, 
are  in  great  danger,  to  the  damage  and  common  nuisance- of,  &c.,  and 
against,  &c,     (^Conclude  as  in  book  1,  chap.  3). 

For  keepiyig  hogs  in   a   city.     First  count,  phtcing  hogs  in  a  certain 
messuage,  dfc,  and  feeding  them,  so  as  to  generate  a  slenchi  4'C.(/) 

That  E.  v.,  late  of,  &.C.,  on,  &c.,  at,  &c.,  near  to  divers  public 

(h)  That  portion  of  this  form  not  in  brackets,  was  before  the  Supreme  Court  of  New 
York  in  People  v.  Sands,  I  Johns.  78,  and  its  adequacy  as  an  indictment  at  common  law 
was  examined  with  jrreat  learnin<r  by  Kent  CI.,  Spencer,  Livingston  and  Tliompson  Js. 
Judgment  was  arrested,  though  it  was  intimated  that  if  the  gunpowder  had  been  charged 
to  have  been  kept  negligently  and  iniproVidently,  there  would  have  been  enough  on  which 
to  rest  a  verdict. 

(i)  Com.  V.  Vansyckle,  7  Pa.  L.  J.  8'2.  This  case  was  tried  before  Sergeant  J.,  at  Nisi 
Prius,  and  a  verdict  of  guilty  was  rendered,  on  which,  however,  there  was  no  judgment, 
the  nuisance  being  previously  abated.  The  chief  points  taken  on  the  indictment  at  the 
trial  were,  1st,  that  there  was  a  variimce  between  tiie  pleading  and  the  evidence,  the  fir<t 
averring  that  the  hogs  were  fed  on  offals,  &e.,  but  the  latter  showing  that  they  were  fiJ 
on  o-rain  ;  and  ^d,  that  the  remedy  at  common  liw  w.is  superseded  by  the  art  constituting 
the  Board  of  Ilcallli.     Both  points  were  overruled  by  the  court;  sec  uuli',  pp.  4J:i-3. 

3G* 


42G  OFFENCES  AGAINST  SOCIETY. 

Streets,  being  the  common  highways  of  the  said  commomwealth,  and 
also  to  the  dvvelhng  houses  of  divers  citizens  of  the  said  common- 
wealth tlien  and  there  situate,  did  unlawfully  and  without  sutficient 
cause,  place  in  a  certain  messuage  or  tenement,  and  in  the  appurte- 
nances thereto,  a  great  number  of  hogs,  to  wit,  one  thousand,  and  the 
said  hogs  then  and  there,  to  wit,  on  the  said  first  day  of  March  as 
aforesaid,  and  on  divers  other  times  and  seasons,  unlawfully  and  in- 
juriously did  feed  and  cause  to  be  fed  with  the  ofl'als  and  entrails  of 
beasts  and  other  filth,  by  means  whereof  divers  noisome  and  un- 
wholesome smells  and  stenches  during  the  time  aforesaid,  and  large 
quantities  of  noxious  and  unwholesome  smokes  and  vapours  on  the 
days  and  times  aforesaid,  then  and  there  were  emitted,  sent  forth  and 
issued  from  the  same  building;  and  the  air  in  the  neighbourhood 
thereof  and  for  a  great  distance  round,  on  the  days  and  times  afore- 
said, was  thereby  greatly  filled  and  impregnated  with  many  noisome 
oflences  and  unwholesome  smells,  stinks  and  stenches,  and  has  been 
corrupted  and  rendered  very  insalubrious,  to  the  great  damage  and 
common  nuisance,  &c.,  to  the  evil  example,  &c.,  contrary,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3), 

Second  count.  Keeping  hogs  near  the  dicelUvs  houses  of  divers  citi- 
zens, d^'C,  and  near  the  public  highways. 

Tliat  the  said  E.  V.,  at,  &c.,  on,  &c.,  and  at  divers  other  times  and 
seasons' between  the  day  aforesaid  and  the  taking  of  this  inquisition, 
with  Ibrce  and  arms,  &c.,  near  the  dwelling  houses  of  divers  good 
citizens  of  the  said  commonwealth  and  also  near  divers  public  streets 
and  common  highways  tliere  situate,  there  did  and  yet  doth  keep  a 
large  number  of  hogs,  to  wit,  one  thousand;  and  the  said  hogs,  on 
the  days  aforesaid  and  the  times  and  seasons  aforesaid,  unlawfully 
and  injuriously  did  feed  and  yet  doth  feed  with  slop,  fermented  grain, 
the  offal  and  entrails  of  beasts  and  other  filth,  by  reason  whereof 
divers  large  quantities  of  noisome,  noxious  and  unwholesome  smokes, 
smells  and  stenches,  on  the  days  and  times  aforesaid,  then  and  there 
were  emitted,  sent  forth  and  issued,  and  the  air  thereabouts,  on  the 
days  and  times  aforesaid,  was  thereby  greatly  filled  and  impregnated 
with  many  noisome  offences  and  unwholesome  smells,  stinks  and 
stenches,  and  has  been  corrupted  and  rendered  very  insalubrious,  to 
the  great  damage  and  common  nuisance,  &c.,  to  the  evil  example, 
&c.,  contrary,  &.C.,  and  against,  &c.  {Conclude  as  in  book  1,  chap.  3). 

Third  county  after  averring  defcmlant  to  be  the  owner  of  a  large 
building,  df'C.y  charges  him  irith  introducing  into  it  great  numbers  of 
hogs,  ^'C. 

That  upon  the  day  and  year  aforesaid,  at  the  county  aforesaid, 
there  was  and  long  before  had  been  and  ever  since  iiath  been  and 
still  is  a  certain  liouse  commonly  called  the  "pigs'  boarding  house," 
and  a  certain  yard  to  tlie  same  house  belonging,  which  said  last  men- 
tioned house  and  yard  are  near  adjoining  to  the  Schuylkill  river, 
wherein  a  great  number  of  the  good  citizens  of  the  said  common- 
wealth are  constantly  passing  and  repassing,  and  to  divers  |)ublic 
streets  and  highways  within  the  city  and  county  as  aforesaid.  And  the 
inquest  aforesaid  do  further  present,  that  the  said  E.  V.  well  know- 
ing the  premises  last  aforesaid,  to  be  clo^e  adjoinnig   tiie  highways 


NUISANCE.  427 

and  roads  as  aforesaid,  upon  the  said  first  day  of  March  as  aforesaid, 
and  at  divers  other  times  and  seasons  between  that  day  and  tlie 
taking  of  this  inquest,  with  force  and  arms,  &c.,  at  the  county  afore- 
said, that  is  to  say,  at  the  said  last  mentioned  house  commonly  called 
the  "  pigs'  boarding  house,"  and  at  and  within  the  said  yard  thereto 
adjoining,  did  unlawfully  gather  and  collect  together  a  great  number 
of  hogs  and  pigs,  to  wit,  the  number  of  one  thousand,  to  the  common 
nuisance  and  great  injury,  &c.,  as  aforesaid,  and  did  then  and  there 
at  tlie  times  and  seasons  last  aforesaid,  unlawfully,  wilfully  and  inju- 
riously lay,  place  and  put,  and  cause  and  procure  to  be  laid,  placed 
and  put,  other  great  quantities  of  oflals,  entrails  and  pieces  of  slinking 
carrion  and  dead  carcasses  of  beasts  and  other  filth,  together  with 
great  masses  and  loads  of  slop  and  of  fermented  grain  and  other  filth, 
slop  and  trash,  by  reason  whereof  the  air  at  and  near  the  said  house 
and  yard,  and  the  highways,  public  streets,  dwelling  houses  and 
other  buildings  adjacerft  and  contiguous  thereto,  at  and  upon  the 
divers  times  and  days  last  above  mentioned,  and  between  those  times 
and  days  and  the  taking  of  this  inquisition,  at  the  county  aforesaid, 
was  and  yet  is  filled,  tainted  and  impregnated  with  noxious,  hurtful 
and  offensive  stinks  and  smells,  to  the  common  nuisance  and  great 
injury,  &c.,  against,  &:c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

For  boiling  huUocli's  hhodfor  making  colours,  near  to  public  icai/s.{j) 

That  T.  D.,  late  of,  &c;,  on,  &c.,  and  on  divers  other  days  and 
times  between  that  day  and  the  day  of  the  taking  of  tliis  inquisition, 
at,  &c.,  aforesaid,  in  a  certain  building  belonging  to  the  dwelling 
house  of  the  said  J.  B-.  there  situate  and  being,  and  also  near  the 
dwelling  houses  of  divers  citizens  of  the  said  state,  and  near  divers 
public  streets  and  common  highways  there,  did  unlawfully  boil  and 
cause  to  be  boiled  a  great  quantity  of  bullock's  blood  and  other  filth 
for  the  making  and  mixing  of  colours,  whereby  divers  noisome  and 
unwholesome  smells,  on,  &c.,  aforesaid,  and  on  the  said  other  days 
and  times  during  the  time  aforesaid,  at,  &c.,  aforesaid,  did  from  thence 
arise,  so  that  the  air  was  thereby  greatly  corrupted  and  infected,  to 
the  great.damage  and  common  nuisance,  &c.(A-),  against,  &c.  (Con- 
clude as  in  hook  1,  chap.  3). 

For  heepivg  a  distillery  near  public  sireets.{l) 

That  A.  B.,  &G.,  on,  &c.,  and  on  divers  other  days,  &c.,  at,  &:c.,  kept 
and  maintained  a  distillery  for  manufacturing  ardent  s|>irits,  and  in 
so  doing  made  large  quantities  of  swill  and  slops,  and  unlawfully  and 


(j)  Dickinson's  Q.  S.  6lh  ed.  426;  see  ante,  p.  423.  If  the  prosecutor  be  one  of  tiie  per- 
sons  whose  comfort  the  annoyance  particularly  ati'ecled  (and  the  indictment  be  moved  Uy 
certiorari),  and  a  conviction  ensue,  he  will  be  entitled  to  iiis  costs  as  a  "  party  grieved," 
within  5  \Vm.  and  Mary  c.  II,  s.  S'. 

(A)  I3ac.  Abr.  tit.  Nuisances;  16  East  194;  and  Reg.  v.  Heagc  (Inhab.),  5  E.-p.  217;  R. 
V.  Davey,  ih. 

(/)  Tliis  is  the  substance  of  llie  indictmeat  in  Peo[)le  v.  Cunnijiglaami,  1  Dtnto  525. 


428  OFFENCES  AGAINST  SOCIETY. 

wilfully  caused  and  permitted  divers  carts,  &c.,  with  teams  to  remain 
ill  Front  street,  which  is  averred  to  be  a  public  street  and  highway 
near  the  distillery  of  tlie  defendants,  for  the  purpose  of  receiving  the 
slops,  &c.,  and  that  said  street  is  and  was  during,  &c.,  used  for  the 
people  of  the  state  with  their  horses,  carriages,  &c.,  to  ride,  drive, 
walk,  &c.,  and  that  the  defendants  on,  &c.,  at,  &c.,  in  delivering  the 
said  slops,  &c.,  into  the  said  carriages,  &c.,  did  unlawfully  and  wil- 
fully make  great  quantities  of  offensive  filth  in  and  upon  the  said 
public  street,  &c.,  and  did  unlawfully  and  wilfully  cause  oflensive 
smells  and  stenches  arising  from  the  slops  and  from  the  horses,  &c., 
used  in  the  carriages,  to  issue,  impregnating  the  air  and  rendering  the 
same  uncomfortable,  and  did  unlawfully,  &c.,  cause,  permit  and  suf- 
fer the  carriages  and  the  horses  to  be,  remain  and  continue  in  and  upon 
the  said  street,  &c.,  to  wit,  for  six  hours  on  each  of  the  said  days, 
whereby  the  common  highway  aforesaid  then  and  on  the  said  other 
days,  &c.,  was  obstructed,  straitened,  filthy,  &c.,  so  that  the  people, 
&c.,  could  not  pass,  repass,  Sec,  as  they  ought  and  were  wont,  &c. 

For  exposivg  a  child  ivfected  until  s/nall-pox  in  the  public  streets. (m) 

That  on,  &c.,  E.  R.,  an  infant  of  tender  age,  to  wit,  about  the  age 
of  four  years,  was  infected,  ill  and  sick  of  and  with  a  certain  coiila- 
gious,  infectious  and  dangerous  disease  and  sickness  called  small-pox, 
at,  &c.  And  that  M.  B.,  the  wife  of  C.  B.,  late  of,  &c.,  aforesaid, 
having  the  care  and  nurture  of  the  said  E.  R.,  well  knowing  the  pre- 
mises aforesaid,  afterwards,  and  whilst  the  said  E.  R.  was  so  infected, 
ill  and  sick  as  aforesaid,  to  wit,  on,  &.c,,  aforesaid,  with  force  and 
arms  at,  &c.,  aforesaid,  unlawfully  and, injuriously  did  take  and  carry 
the  said  E.  R.  into  and  along  a  certain  open  public  street  and  passage 
called  Market  street,  situate  in  the  parish  of  St.  John,  in  the  town  "f 
N.,  in  the  County  of  N.  aforesaid,  used  for  all  the  good  people  of  the 
said  state  on  foot  to  go,  return  and  pass  in,  along  and  through,  in 
which  said  public  street  and  passage  there  were  divers  good  people 
of  the  said  state,  and  near  unto  and  by  divers  dwelling  houses,  habi- 
tations and  residences  of  tlie  good  people  of  the  said  state  then  and 
there  dwelling,  inhabiting  and  residing,  and  unto  and  into  a  certain 
common  higliway,  situate  and  being  in,  &c.,  aforesaid,  used  for  all  the 
good  people  of  the  said  state  on  foot  and  with  coaches,'carts  and  car- 
riages to  go,  return,  pass,  ride  and  labour  in,  along  and  through,  in 
and  along  which  said  common  highway  there  the  good  people  of  tJie 
said  state  were  then  going,  returning,  passing,  riding  and  labouring, 
and  amidst  and  among  the  good  people  of  the  said  state  who  then 
and  there,  to  wit,  in  the  same  common  highway  in  the  parish  and 
county  aforesaid,  had  met  and  assembled  together;  and  that  the  said 
M.  B.  afterwards,  and  whilst  the  said  E.  R.  was  so  infected,  ill  and 
sick  as  aforesaid,  to  wit,  on,  &c.,  and  on  divers  other  days  and  times 
between  that  day  and  the  day  of  in  the  same  year,  at, 

&c.,  aforesaid,  wrongfully  and  injuriously  did  take  and  carry  the  said 

(m)  Dickinson's  Q.  S.  60i  cd.  42^-;  sec  R.  r.  Vantandillo,  4  M.  &  S.  73 ;  R.  d  Sutton,  4 
Burr.  21 IG ;  U.  v.  liurrct,  4  M.  &,  S.  272. 


NUISANCE.  429 

E.  R.  into  and  along  the  aforesaid  open  and  public  street  and  passage 
called,  &c.,  and  near  unto  and  by  tlie  aforesaid  dwelling  houses, 
liubitations  and  residences  of  the  good  people  of  the  said  state  there 
dwelling,  inhabiting  and  residing,  and  also  near  unto  and  by  the  good 
people  of  tiie  said  state  in  the  said  open  and  public  way  and  passage, 
on,  &c.,  and  on  the  said  other  days  and  times  there  being,  to  the  great 
and  manifest  danger  of  infecting  with  said  contagious,  infectious  and 
dangerous  disease  and  sickness  called  the  small-pox,  all  the  good 
people  of  the  said  state,  who,  on  the  several  days  and  times  aforesaid, 
were  in  and  near  the  aforesaid  open  and  public  way  and  passage, 
dwelling  liouses,  habitations,  residences  and  common  highway,  and 
who  had  not  had- the  said  disease  and  sickness;  to  the  great  damage 
and  connuon  nuisance,  &c.,  and  against,  iiic.  {Conclude  as  in  book 
1,  chap.  3). 

That  the  said  M.  B.  well  knowing  that  the  said  E.  R.  was  so  in- 
fected, ill  and  sick  as  aforesaid,  afterwards,  and  whilst  the  said  E.  R. 
was  so  infected,  ill  and  sick,  to  \vit,~  on  the  said,  &c.,  and  on  divers 
other  days  and  times  between  that  day  and  the  said,  &c.,  in  the  same 
year,  with  force  and  arms  at,  &c.,  aforesaid,  unlawfully  and  inju- 
riously did  take  and  carry  the  said  E.  R.  into  and  along  the  aforesaid 
open  public  highway  and  passage  called,  &c.,  situate  aud  being,  &c., 
and  near  unto  and  by  the  aforesaid  dwelling  houses,  habitations  and 
residences  of  the  good  people  of  the  said  state  there  dwelling,  inhabit- 
ing and  residing,  and  also  near  unto  and  by  tlie  good  people  of  the 
said  state  in  the  said  open  public  way  and  passage,  on,  &c.,  and  on 
the  said  other  days  and  times  as  last  mentioned,  there  being,  to  the 
great  and  manifest  danger  of  infecting  with  the  said  contagious,  in- 
fectious and  dangerous  disease  and  sickness  called  the  small-pox,  the 
good  people  of  the  said  state,  who  on  the  said,  &c.,  and  on  the  said 
divers  other  days  and  times  last  mentioned,  were  in  the  said  o|)en  and 
public  way  and  passage,  and  who  dwelled,  inhabited  and  resided 
there  and  near  thereto,  and  who  were  liable  to  take  the  said  disease 
and  sickness,  to  the  great  damage  and  commou  nuisance,  and  against, 
&,c.     [Conclude  as  in  book  1,  chap.  3). 

Against  owner  of  land  for  erecting  offensive  buildings.{n) 

That  the  defendant  on,  &c.,  at  a  certain  place  commonly  called 
Diamond  alley,  near  unto  divers  public  streets  and  dwelling  houses, 

(n)  R.  V.  Pcdley,  1  A.  &  E.  822.  The  second  count  charged  the  defendant  with  contr- 
nuing  the  necessary  and  sink  before  that  time  made,  &c.,  by  persons  unknown,  and  laid 
the  nuisance  as  before.  The  third  count  charged  that  the  defendant  near,  &.C.,  (as  before), 
did  put,  place  and  leave  and  did  cause  and  procure  to  be  put,  placed  and  left,  divers  large 
quantities  of  ordure,  (&c.  The  fourth  count  charged  the  defendant  with  permitting  and 
suftcring  tlie  nuisance  (as  in  the  third  count,  except  that  tlie  nuisance  was  said  to  be  cre- 
ated by  persons  unknown)  to  remain.  On  tlie  trial  before  Ld.  Denman  C.  J.,  it  was 
proved  that  the  defendant  was  in  the  receipt  of  tlie  rents  of  twelve  dwelling  houses,  which 
were  let  for  siiort  periods  to  tenants,  and  that  two  necessary  jiouses  and  a  sink  belonging 
to  them,  were  used  in  common  by  tiie  persons  occupying  the  dwelling  houses.  It  did  not 
appear  whether  any  of  the  present  tenants  commenced  occupying  the  dwelling  houses  be- 
fore tlie  defendant  began  to  receive  the  rents ;  but  tlie  necessary  houses  and  sink  were 
constructed  and  used  by  tlie  tenants  of  those  premises  before  his  time.  There  was  no  dis^ 
tiiict  proot'ot^any  actual  demise,  of  the  necessary  houses  and  sink,  but  they  had  leguluily 


430  OFFENCES  AGAIXST  SOCIETY. 

unlawfully  did  make,  erect  and  set  up  two  buildings  called  necessary 
houses,  for  the  common  use  of  divers  persons  residing  in  and  frequent- 
ing Diamond  alley,  and  did  also  make  and  cause  to  be  made  a  certain 
open  sink  for  the  reception  of  ordare,  &c.,  and  then  and  there,  and 
on  divers  other  days  and  times  between,  &c.,  divers  persons  residing 
in  and  frequenting  Diamond  alley,  did  resort  to  and  use,  and  yet  do 
resort  to  and  use  the  said  necessary  houses,  and  did  place  and  leave, 
and  cause  to  be  placed  and  left,  in  the  said  open  sink,  divers  large 
quantities  of  ordure,  &c.,  by  reason  of  which,  &c.,  {staling  the  nuis- 
ance 7'esulting). 

For  keeping  a  privy  in  a  slreet.{nn) 

That  C.  W.,  late  of,  &c.j  yeoman,  on,  &c.,  and  from  that  day  until 
the  day  of  finding  this  inquisition,  at,  &c.,  unlawfully  and  obstmately 
did  keep  and  maintain  and  yet  doth  keep  and  maintain,  near  one  of 
the  public  streets  in  the  said  city,  to  wit,  High  or  Market  street,  and 
also  near  the  dwelling  house  of  C.  B.  and  A.  T.  and  of  divers  other 
citizens  of  the  said  city  there  situate,  a  certain  privy  or  house  of  office, 
and  from  the  filth  and  human  excrement  therein  contained  divers  fetid, 
nauseous,  hurtful,  pernicious  and  unwholesome  smells,  on  the  days  and 
times  aforesaid  did  and  still  do  arise  and  proceed,  whereby  the  air  there 
was  and  still  is  corrupted,  infetid  and  infected,  and  the  health  of  the 
said  C.  B.  and  A.  T.,  and  divers  other  good  citizens  of  this  common- 
wealth there  inhabiting,  residing  and  passing,  has  been  and  still  is 
endangered  and  impaired,  to  the  great  damage  and  common  nuis- 
ance, &c.,  there  inhabiting,  residing  and  passing,  to  the  evil  example, 
&.C.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

For  keeping  a  privy  near  an  adjoining  house. (o) 

That  W.  R.,  late  of,  &c.,  yeoman,  on,  &c.,  and  from  that  day  until 
the  finding  of  this  inquisition,  at,  &c.,  did  keep  and  maintain,  and  yet 
doth  keep  and  maintain,  unlawfully  and  obstinately,  near  the  dwelling 

been  cleansed  by  the  persons  occupying'  the  dwelling  houses,  until  the  time  of  the  nuis- 
ancc,  when  the  cleansing'  had  been  neglected.  The  nuisance  had  arisen  since  tlie  defend- 
ant began  to  receive  tlic  rents.  Tlic  only  method  of  draining  the  places  from  whicli  the 
nuisance  proceeded,  would  be  to  cut  througli  a  close  belonging  to  the  defendant.  Some 
evidence  was  given  to  show  an  implied  admission  by  the  defendant  that  he  himself  was 
bound  to  do  tiie  cleansing.  The  jury,  under  the  direction  of  the  cliief  justice,  found  a  ver- 
dict of  gtilty;  subject  to  a  motion  for  setting  aside  the  verdict  and  entering  an  acquittal. 

The  conviction  was  sustained  by  the  court,  it  being  ruled  generally  that  if  the  owner  of 
land  erect  a  buihhng  which  is  a  nuisance,  or  of  whieli  the  occupation  is  liitely  to  produce 
a  nuisance,  and  let  the  land,  he  is  liable  to  an  indictment  for  such  nuisance  being  conti- 
nucd  or  created  during  tlie  term,  and  that  tlie  same  principle  extended  to  cases  where  lie 
lets  a  buihiing  whicli  requires  particuhir  care  to  prevent  the  occupation  from  being  a  nuis- 
ance,  and  tlic  nuisance  occur  for  want  of  such  care  on  the  part  of  the  tenant.  It  was 
declared  by  Littlcdale  J.,  that  if  a  party  buy  a  reversion  during  a  tenancy  and  the  tenant 
afterwards,  during  his  term  erect  a  nuisance,  the  reversioner  is  not  liable  for  it;  but  if 
such  reversioner  relet,  or  having  an  opportunity  to  determine  the  tenancy,  omit  to  do  so, 
allowing  the  nuisance  to  continue,  he  is  liaide  for  such  continuance,  and  that  such  pur- 
chaser is  liable  to  be  iadicled  for  the  continuing  of  the  nuisance,  if  the  original  reversioner 
would  liave  l)een  liable,  though  the  purchaser  lias  had  no  opportunity  of  putting  an  end  to 
the  tenant's  interest,  or  abating  the  nuisance. 

(nn)  This  form,  though  sustained  by  the  courts  in  Philadelphia,  cannot  be  so  depended 
uphn  a«  the  next. 

Co;  Drawn  in  178!)  by  Mr.  Bradford,  then  attorney -general  of  Pennsylvania. 


NUISANCE.  431 

house  of  divers  citizens  of  the  State  there  situate  and  adjoining  tlio 
dweUing  house  of  one  P.,  a  certain  privy  or  house  of  office,  so  filled 
with  filth,  dung  and  human  excrement,  that  the  same  flowed,  issued 
and  came,  and  yet  doth  flow,  issue  and  come  through  the  walls  of 
and  into  the  said  dwelling  house  so  adjoining  as  aforesaid,  and  by 
reason  whereof  divers  fetid,  noisome  and  unwholesome  smells  during 
the  time  aforesaid,  did  and  yet  doth  arise,  and  the  air  thereby  was 
and  still  is  greatly  corrupted  and  infected,  to  the  great  damage  and 
common  nuisance  of  all  the  liege  subjects  of  this  state  thereabouts 
resident,  to  the  evil  example,  &c.,  against,  &c.  {Conclude  as  in  book 
1,  chap.  3). 

Disorderly  house,  SfC.     Form  used  in  JVeiw  York. 

That  A.  B.,  late  of,  &c.,  labourer,  on,  &c.,  and  on  divers  other  days 
and  times  between  that  day  and  the  day  of  the  taking  of  this  inqui- 
sition, at  the  city  and  ward  and  in  the  county  aforesaid,  did  keep  and 
maintain,  and  yet  keep  and  maintain,  a  certain  common,  ill 

governed  and  disorderly  house,  and  in  said  house,  for 

own  lucre  and  gain,  certain  persons,  as  well  men  as  women,  of  evil 
name  and  fame,  and  of  dishonest  conversation,  to  frequent  and  come 
together,  then  and  on  the  said  other  days  and  times,  there  unlawfully 
and  wilfully  did  cause  and  procure,  and  the  said  men  and  women,  in 
said  house,  at  unlawful  times,  as  well  in  the  night  as  in  the 
day,  then  and  on  the  said  other  days  and  times,  there  to  be  and 
remain,  drinking,  tippling,  gambling,  whoring  and  misbehaving  them- 
selves, unlawfully  and  wilfully  did  permit,  and  yet  permit,  to 
the  great  damage  and  common  nuisance  of  the  people  of  the  State  of 
New  York,  there  inhabiting,  residing  and  passing,  to  the  evil  example, 
&c.,  and  against,  &c.     {Conclude  us  in  book  1,  chap.  3). 

Second  count.     Gaming  house,  ^-c. 

That  the  said  A.  B.,  afterwards,  to  wit,  on  the  said  day  of 

in  the  year  aforesaid,  and  on  divers  other  days  and  times  as 
aforesaid,  with  force  and  arms,  at  the  ward,  city  and  county  aforesaid, 
a  certain  common  gaming  house,  there  situate,  for  lucre  and 

gain,  unlawfully  and  injuriously  did  keep  and  maintain,  and  in  the 
said  common  gaming  house,  there  unlawfully  and  injuriously  did 
cause  and  procure  divers  idle  and  ill-disposed  persons  to  be  and 
remain  in  the  said  common  gaming  house,  and  to  game  together,  and 
play  at  cards,  dice  and  billiards,  {adding  other  games,  <§-c.),  for 
money,  on  the  said  day  of  in  the  year  one  thousand 

eight  hundred  and  aforesaid,  and  on  the  said  other  days  and 

times,  there  did  unlawfully  and  injuriously  procure,  permit  and  suffer; 
and  the  said  persons,  in  the  said  common  gaming  house,  there  on  the 
day  of  aforesaid,  and  on  the  said  other  days  and  times, 

by  such  procurement,  permission  and  suti'erance  of  the  said  A.  B., 
did  game  together  and  play  at  cards,  dice  and  billiards,  {as  above), 
for  money,  to  the  great  damage  and  common  nuisance  of  all  the 
people  of  the  State  of  New  York,  and  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 


432  OFFEXCES  AGAIXST  SOCIETY. 

DisovcUrhj  house.     Form  in  use  in  Massachusetis. 

That  A.  B.,  of  Boston  aforesaid,  yeoman,  on,  &c.,  at,  &c.,  and  on 
divers  other  days  and  times,  as  well  before  as  since,  did  keej?  and  main- 
tain a. certain  common  honse  of  ill-fame  there  sitnate,  resorted  to  for 
the  purpose  of  prostitution  and  lewdness;  and  in  said  house,  for 

own  lucre  and  gain,  certain  persons,  whose  names  to  said 
jurors  as  yet  are  not  known,  as  well  men  as  women,  of  evil  name 
and  fame  and  of  dishonest  conversation,  to  frequent  and  come  to- 
gether then,  and  on  the  said  other  days  and  times,  there  unlawfully 
and  wilfully  did  cause  and  procure,  and  the  said  men  and  women  in 
said  house  at  unlawful  times,  as  well  in  the  night  as  in  the 
day,  then  and  on  said  other  days  and  times,  there  to  be  and  remain 
whoring,  [insert  other  acts  of  disorder,  as  tlie  facts  may  be),  and 
otherwise  misbehaving  themselves,  unlawfully  and  wilfully  did  per- 
mit and  sutfer,  to  the  great  injury  and  common  nuisance,  &c.,  against, 
&c,,  and  contrary,  &c.     [Conclude  as  in  book  1,  chap.  3). 

For  heeping  a  common  bawdy  house  in  Massachusetts. (p) 

That  A.  B.  of,  &c.,  labourer,  on,  &c.,  and  on  divers  other  days  and 
times  as- well  before  as  afterwards,  to  the  day  of  taking  this  inqui- 
sition, at,  &c.,  a  certain  common  house  of  ill-fame,  unlawfully  and 
wickedly  did  keep  and  maintain;  and  the  said  house,  for  the  sake  of 
lucre  and  gain,  divers  evil  disposed  persons,  as  well  men  as  women, 
and  common  prostitutes,  on  the  days  and  times  aforesaid,  as  well  in  the 
night  as  in  the  day,  there  unlawfully  and  wickedly  did  receive^  and 
entertain  ;  and  in  which  house  the  said  evil  disposed  persons  and  com- 
mon prostitutes,  by  the  consent  and  procurement  of  the  said  A,  B.,  on 
the  days  and  times  aforesaid,  there  did  commit,  wlioredom  and  fornica- 
tion ;  whereby  divers  unlawful  assemblies,  riots,  aflVays,  distm-bances 
and  violations  of  the  peace  of  the  said  commonwealth,  and  lewd 
offences,  in  the  same  house,  on  the  days  and  times  aforesaid,  as  well 
in  the  night  as  in  the  day,  were  there  committed  and  perpetrated ;  to 
the  great  damage  and  common  nuisance,  &c.,  in  manifest  destruction 
and  subversion  of,  and  against  good  morals  and  good  manners,  and 
against,  &c.(*/)     [Conclude  as  in  book  \,  chaj).  3). 


ip)  2  Chit.  40  ;  Cm.  C.  C.  302  (Sth  cd.)  Sec  note  {}>)  2  Cliit.  40,  wlieie  it  is  said  tliat 
this  is  the  common  printed  form  used  in  England.  It  is  not  necessary,  says  Mr.  Davis, 
Prcc.  iy.3,  to  state  piirticulars ;  as  the  names  of  those  wlio  frcfiucntcd  tlic  house;  2  Burr. 
1232;  1  T.  R.  752,  7.54.  I'ut  evidence  of  particular  instances  of  illicit  intercourse  may  be 
piven  in  evidence  under  the  general  charge.  If  tlie  person  be  only  a  lodger  and  make  use 
of  her  room  for  disorderly  purposes,  siie  would  [)c  responsible.  See  ante,  foot  of  p.  422, 

(f/)  This  count  is  sustained  in  Jennings  w.  Com.,  17  Pick.  81  ;  and  it  was  lu.'ld  that  the 
common  law  misdemeanour  it  s[)ceificd  did  not  merge  in  the  ollincc  created  by  stat.  I7!)3, 
c.  .59,  s.  8.  A  second  count  accomi)anied  it  of  the  same  structure,  with  the  exception  of  llie 
omission  of  the  averment  of  lucre.  Whether  or  no  this  averment  was  essential  it  was  not 
necessary  to  decide,  as  there  was  already  one  clearly  good  count  witii  which  to  support  the 
verdict.  I  a|)[»rehend,  however,  that  the  averment  can  he  safely  dis])ensed  with  in  those 
cases  where  the  evidence  does  not  sup[)ort  it,  as  the  non-acceptance  of  money  certainly 
docs  not  lessen  the  outrage  committed  on  the  morals  and  peace  of  the  community. 


NUISAXCE.  433 

Disorderly  house.     Form  used  in  Philadelphia. 

That  A,  B.,  late  of,  &c.,  yeoman,  S:c.,  and  on  divers  days  and  times 
between  that  day  and  ttie  day  of  tlie  tailing  of  their  inqnisition,  with 
force  and  arms,  at  the  county  aforesaid  and  within  the  jurisdiction  of 
this  court,  did  keep  and  maintain,  and  yet  doth  keep  and  maintain,  a 
certain  .common,  ill-governed  and  disorderly  house;  and  in  said 

house  for  own  lucre  and  gain,  certain  persons,  as  well  men  as 

women  of  evil  name  and  fame  and  of  dishonest  conversation,  to 
frequent  and  come  together  there,  and  on  the  said  other  days  and 
times,  there  unlawfully  and  wilfully  did  cause  and  procure,  and  the 
said  men  and  women  in  said  house,  at  unlawful  times,  as  well 

in  the  night  as  in  the  day,  then  and  on  the  same  other  days  and 
times,  there  to  be  and  remain  drinking,  tippling,  and 

otherwise  mis,behaving  themselves,  unlawfully  and  wilfully  did  per- 
mit and  sutfer,  and  yet  doth  permit  and  suffer,  to  the  great  damage 
and  common  nuisance,  &c.,  to  the  evil  example,  &c.,  and  against, 
&c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count.      Tippling  house. 

That  the  said  A.  B.,  on  the  same  day  and  year  aforesaid,  at  the 
county  aforesaid  and  within  the  jurisdiction  of  the  same  court,  did 
sell  and  retail,  and.  cause  to  be  sold  and  retailed,  within  the  said 
county,  less  than  one  quart  of  rum,  wine,  brandy  and  other  spirituous 
and  vinous  liquors,  then  and  there  delivered  at  one  time  and  to  one 
person,  and  to  more  than  one  person,  without  having  first  obtained 
license  agreeably  to  law  for  that  purpose,  against,  &.C.,  and  against, 
Sec.     {Conclude  as  in  book  1,  chap.  3). 

Another  form  for  sat7ie.{r) 

That  defendant,  on,  &c.,  at,  &c.,  and  on  divers  other  times  and  sea- 
sons between  diat  time  and  the  taking  of  this  inquisition,  kept,  &.C., 
"a  disorderly  and  ill-governed  house, and  did  then  and  tliere  unlaw- 
fully cause  and  procure  for  his  own  lucre  and  gain  certain  persons, 
as  well  men  as  women  of  evil  name  and  fame  and  of  dishonest  conver- 
sation, to  frequent  and  come  together,  in  his  said  house,  at  unlawful 
times,  as  well  in  the  night  as  in  the  day,  and  did  permit  them  there  to 
be  and  remain  drinking,  tippling  and  misbehaving  themselves,  to  the 
great  damage  and  common  nuisance,  &c.,  to  the  evil  example,  iStc." 

Disorderly  house,  under  Vermont  Rev.  Stat.  s.  9,  c.  99.(5) 
That  G.  N.,  late  of,  &c.,  on,  &c.,  and  on  divers  other  days  and  times 

(r)  Com.  V.  Stewart,  I  S.  &  R.  343.  "The  case  of  King-  v.  Hisfffinson,  2  Burr.  1232," 
said  Tilghtnaii  C.  J.,  in  exaininiiijr  the  count,  "  is  very  niucli  like  this.  The  only  ditfcr- 
ence  is  that  instead  of  drinking-,  tippling,  &,c.,  Higginson  is  charged  with  procuring  per- 
sons to  come  to  his  house,  and  |)ermitting  them  to  remain  there  '  fighting  of  cocks,  boxin<r, 
playing  at  cudgels  and  misbcliaving  tliemselvcs,  to  the  grcitt  damage  and  common  nui- 
sance, &.C.'  Tlie  same  objection  was  made  to  that  indictment,  yet  it  was  held  good.  Ue- 
sides,  it  is  of  great  weight  that  this  forui  of  indictment  is  ot' ancient  date  in  this  stale,  and 
there  have  been  many  convictions  under  it.  I  am  therefore  of  opinion  that  it  is  sufficient ;" 
see  also  Hunter  v.  Com.,  2  S.  tfc  R.  2lt8. 

(s)  "After  a  careful  ()erusal  of  this  indictment,"  said  the  Supreme  Court  of  Vermont,  in 
37 


434  OFFENCES  AGAINST  SOCIETY. 

between  that  day  and  the  day  of  taking  this  inquisition,  with  force  and 
arms  at,  &c.,  in  the  County  of  Chittenden  aforesaid,  feloniously  a  certain 
liouse  of  ill-fame,  commonly  called  a  bawdy  house,  resorted  to  for  the 
purposes  of  prostitution  and  lewdness,  unlawfully  and  wickedly  did 
keep  and  maintain,  and  in  the  said  house,  for  filthy  lucre  and  gain, 
divers  evil  disposed  persons,  as  well  men  as  women  and  whores,  on  the 
days  and  times  aforesaid,  as  well  in  the  night  as  in  the  day,  there 
unlawfully  and  wickedly  did  receive  and  entertain,  and  in  which 
said  house  the  said  evil  disposed  persons  and  whores,  by  the  consent 
and  procurement  of  the  said  G.  N.,  on  the  days  and  times  aforesaid, 
there  did  commit  whoredom  and  fornication,  whereby  divers  unlaw- 
ful assemblies,  riots,  routs,  affrays,  disturbances  and  violations  of  the 
peace,  and  dreadful,  filthy  and  lewd  offences  in  the  same  house,  on 
the  days  and  times  aforesaid,  as  well  in  the  night  as  in  the  day,  were 
there  committed  and  perpetrated,  to  the  great  damage  and  common 
nuisance,  &c.,  to  the  evil  example,  &c.,  in  manifest  destruction  and 
subversion  of  morality  and  good  manners,  contrary,  &c.,  and  against, 
&c,     {^Conclude  as  in  book  1,  chajj.  3). 

Keeping  a  disorderly  house,  and  fighting  cocks,  ^'C,  at  common  Iaic.{t) 

That  P.  Q.,  late  of,  &c.,  and  R.  S.,  late  of,  &c.,  on,  &c.,  and  on 
divers  otlier  days  and  times  between  that  day  and  the  day  of  the 
taking  of  this  inquisition,  with  force  and  arms,  at  the  parish  aforesaid 
in  the  county  aforesaid,  did  keep  and  maintain,  and  yet  do  keep  and 
maintain,  a  certain  common,  ill-governed  and  disorderly  house,  and 
in  the  said  house,  for  their  own  lucre  and  profit(«)  certain  evil  and 
ill-disposed  persons  of  ill-name  and  fame(y)  and  of  dishonest  con- 
versation, to  frequent  and  come  together",  then,  and  the  said  other 
days  and  times,  there  unlawfully  and  wilfully  did  cause  and  procure, 
and  the  said  persons  m  the  said  house  then,  and  the  said  other  days 
and  times,  there  to  be  and  remain,  fighting  of  cocks,  boxing,  playing 
at  cudgels  and  misbehaving  themselves,  unlawfully  and  wilfully  did 
permit,  and  yet  doth  permit;  to  the  great  damage  and  common 
nuisance,  &c.,  and  against,  &.c.     {Conclude  as  in  book  \,  chap.  3). 


State  V,  Nixon,  18  Verm.  70,  "  \vc  sec  no  reason  to  doubt  its  sufficiency."  Tiie  keeping  a 
liouse  of  ill-fame,  it  was  ruled,  is  a  local  ofience,  and  must  be  described  in  an  indictment, 
as  committed  in  a  particular  tovvn,  and  tlie  ))roseculor  is  confined  in  his  proof  to  the  town, 
and  cannot,  as  in  otiicr  cases,  prove  an  otFence  within  the  county;  but  a  more  particular 
desciiption  of  the  house  is  not  required. 

(<)  Dickinson's  Q.  S.  6tli  cd.  4i24.  Cock-fi(rlitin<j  was  prohibited  as  in  itself  an  illegal 
pastime,  in  3:)  Ed.  III.;  see  11  Re[).  87;  and  an  indictment  will  lie  for  it  at  common  law; 
Squires  t).  Whiskeii;  .TCam|)b.  I4H;  H.  v.  Hi;;<rinson,  2  Burr.  R.  123.3.  See  also  penalties 
inflicted  by  .")  and  (i  Wm.  IV.  c.  .'JD,  s.  3;  and  2  and  3  Vict.  c.  47,  s.  47,  for  keeping  cock- 
l)its;  sec  2  Shower  3S;  4  Com.  Dig.  tit.  Justices  of  Peace  (B.  42) ;   I3ac.  Abr.    Gaining 

(A-  ^>-       . 

(m)  An  indictment  for  abduction  of  a  girl  having  a  j^ortion  of  .£  1300,  against  3  Hen.  VII. 

c.  2,  laid  the  otfenee  "  for  lucre  of  the  gain  of  the  said  portion  ;"  Fulwood's  case,  Cro.  Car. 

483;  for  "Jncic  and  lu.xuriousness  arc  the  ends  of  such  an  act;"  ih.  485;  Dickinson's  Q. 

S.  6th  cd.  42.->. 

(tj)  Need  not  be  named  ;  2  Burr.  1232,  R.  v.  Iligginson  ;  from  wliicii  this  form  is  taken; 

Dickinson's  Q.  S.  6th  cd.  425. 


NUISAVCK.  435 

Disorderhj  house.     Form  used  hi  Soulk  Carolina. 

That  A.  B.,  on,  &.C.,  and  on  divers  other  days  atid  times  between 
that  day  and  the  day  of  the  taking  of  this  inquisition,  with  force  and 
arms  at,  &c.,  unlawfully  did  keep  and  maintain  a  certain  common-ill- 
governed  and  disorderly  house,  situate  in  the  district  and  state 
aforesaid;  and  in  the  said  house,  for  the  lucre  and  gain  of  the 
said  certain  persons,  as  well  men  as  womeii,  of  evil  name  and 
fame  and  of  dishonest  conversation,  then  and  on  the  said  other  days 
and  times,  there  unlawfully  and  willingly  did  cause  and  procure  to 
frequent  and  come  together,  and  the  said  men  and  women,  in  the 
said  house  of  the  said  then,  and  on  the  said  other  days 
and  times,  as  well  in  the  night  as  in  the  day,  there  to  be  and  remain, 
drinking,  tippling,  whoring  and  misbehaving  themselves,  unlawfully 
and  wilfully  did  permit,  and  yet  do  permit;  to  the  great  damage  and 
common  nuisance,  &,c.,  to  the  great  displeasin'e,  &c.,  to  the  evil  ex- 
ample, &.C.,  and  against,  &c,     {Conclude  as  in  book  1,  cliup.  3). 

Letting  house  to  voman  of  ill-fame,  at  common  lau-.{ic) 

That  R.  H.,  of,  &c.,  physician,  on,  &c.,  at,  &c.,  did  let  out  and 
accommodate  a  certain  room  in  the  house  of  him  said  H.,  in  Elliott 

(w)  Com.  V.  Harrington,  3  Pick.  26.  Parker  C.  J.,  said  in  substance,  "tliat  the  court 
were  of  opinion  tiiat  there  was  nothing  in  the  first  objection  to  the  -conviction,  namely, 
that  the  lease  was  not  proved  to  have  been  made  on  the  day  alleged  in  tlie  indictment. 
Time  does  not  enter  into  the  constitution  of  the  offence,  and  this  case  differs,  therefore, 
from  an  indictment  for  usury,  where  it  is  necessary  to  set  forth  the  time  of  making  the 
usurious  contract. 

"  The  principal  objection,  however,  was  that  the  facts  alleged  do  not  constitute  an  in- 
dictable offence.  It  is  found  that  the  defendant  let  the  house  to  a  woman  of  ill-fame,  know- 
ing her  to  be  such,  with  tiie  intent  that  it  should  be  used  for  the  purposes  of  prostitution, 
and  that  it  was  so  used.  There  is  no  statute  against  such  an  offence,  and  the  question 
tlien  is,  whether  it  is  indictable  at  common  law.  It  has  been  compared  to  cheating  on 
false  pretences,  which  was  not  indictable  at  common  law,  and  which  has  been  made  so  by 
a  statute.  But  the  cases  are  different,  -inasmuch  as  cheating  acts  only  upon  the  individual 
defrauded;  whereas  this  offence  is  of  a  public  nature,  and  obviously  injurious  to  the  public 
morals.  The  real  question  is,  whether  exciting,  encouraging  and  aiding  one  to  commit  a 
misdemeanor,  is  not  of  itself  a  misdemeanor.  And  we  find  that  it  has  been  held  so  to  be 
in  the  case  of  The  King  v.  Phillips,  6  East  464,  in  which  it  was  decided,  that  an  endeavour 
to  provoke  another  to  commit  the  misdemeanor  of  sending  a  challenge  to  fight,  is  itself  a 
misdemeanor;  it  being  the  object  of  the  law  to  prevent  the  commission  of  otiences.  On 
this  ground  we  think  the  indictment  is  sustainable.  In  Hex  v.  Scofield,  Cald.  397,  it  was 
held  that  the  intent  may  make  an  act,  innocent  in  itself,  criminal.  To  apply  this  principle 
to  the  present  case:  The  letting  of  a  house  is  in  itself  an  innocent  act,  but  the  defendant 
let  his  house  for  the  purposes  of  prostitution,  and  he  knew  that  it  was  used  accordingly. 
Now  keeping  a  bawdy  house  is  an  offence  at  common  law,  and  letting  a  house  for  such 
purpose  must  therefore  be  a  misdemeanor. 

"A  case  has  been  cited  in  which  a  party  was  allowed,  in  a  civil  action,  to  recover  a 
compensation  for  washing  clothes  for  the  defendant,  although  the  plaintitf  Itnew  that  the 
defendant  was  a  prostitute,  and  that  the  clothes  were  used  for  the  purposes  of  allurement. 
But  this  indictment  goes  further.  It  alleges  not  onlv  that  the  defendant  knew  tliat  his 
house  would  be  put  to  an  unlawful  use,  but  that  lie  let  it  f  )r  that  very  purpose.  And  there 
is  a  case  in  1  Esp.  13  (Girardy  v.  Richardson),  in  which  Ld.  Kenyon  held  that  a  party 
letting  his  house  for  such  a  purpo-^  is  not  entitled  to  recover  rent. 

"  King  V.  Higgius,  2  East  .5,  is  a  strong  case  to  show  that  the  common  law  will,  pro- 
pria vigore,  punish  in  a  case  like  the  one  before  us.  There  a  man  solicited  a  servant  to 
steal  his  master's  goods,  and  it  was  held  a  misdemeanor  to  solicit  a  person  to  commit  a 
crime, 

"  It  being  found  Iiere  that  the  defendant's  house  was  let  to  be  used  for  an  unlawful  pur- 


4o6  OFFENCES  AGAINST  SOCIETY. 

Street,  so  called,  in  said  Boston,  for  his  own  gain  and  reward,  and 
lor  a  certain  rent  and  sum  of  money  to  him  to  be  paid  therefor,  to 
<'ne  S.  B.,  with  intent  and  design  that  she  the  said  B.  should  then 
and  there  in  the  room  aforesaid,  have,  receive  and  entertain  divers 
male  persons  to  the  jurors  unknown,  with  whom  to  commit  the 
crime  of  fornication  and  whoredom,  and  did  continue  to  let  out  and 
accommodate  the  said  room  to  said  B.,  from  that  day  continually  to 
the  day  of  tlie  taking  of  this  inquisition,  lor  the  purpose  aforesaid,  in 
which  said  room  the  said  B.  then  and  on  divers  other  days  and 
times  between  said  day  and  the  day  of  the  taking  of  this  inquisition, 
there  did  commonly  with  the  knowledge  and  consent  of  said  H., 
commit  whoredom  and  fornication,  with  divers  persons  whose  names 
are  to  the  said  jurors  unknown,  to  the  great  damage  and  common 
nuisance,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Keeping  a  'gamivg  house,  at  common-  Iaic.{x) 

That  defendant  at,  &c.,  on,  &c.,  and  at  divers  other  times  between 
that  day  and  the  finding  of  this  inquisition,  unlawfully  did  keep  and 
maintain  a  certain  common  gaming  house;  and  in  the  said  common 
gaming  house,  for  lucre  and  gain,  on,  &:c.,  and  on  the  said  other  days 
and  times,  there  unlawfully  and  wilfully  did  cause  and  procure 
divers  idle  and  evil  disposed  persons  to  frequent  and  come  to  play 
together  at  a  certain  unlawful  game  of  cards  called  rouge  et  noir; 
and  in  the  said  common  gaming  house,  on,  &c.,  and  on  the  other 
days  and  times,  there  unlawfully  and  wilfully  did  permit  and  suffer 
the  said  idle  and  evil  disposed  persons  to  be  and  remain  playing 
and  gaming  at  the  said  unlawful  game  of  rouge  et  noir,  for  divers 
large  and  excessive  sums  of  money  ;  to  the  great  damage  and  com- 
mon nuisance,  &c,,  to  the  evil  example,  &c.,  and  against,  &c.  (Con- 
clnde  as  in  book  1,  chap.  3). 

Second  count.     Gamivg  room. 

That  the  said  J.  S.,  afterwards,  to  wit,  on,  &c.,  and  on  divers  other 
days  and  times  betweeii  that  day  and  the  day  of  taking  of  this  in- 
quisition, with  force  and  arms,  at  the  parish  aforesaid  in  the  county 
aforesaid,  unlawfully  did  keep  and  maintain  a  certain  common  gam- 
ing room  in  the  house  of  one  J.  N.,  there  situate  ;  and  in  the  said  com- 
mon gaming  room  &c.,  {as  in  the  hist  count,  only  substituting: 
"gaming  \oo\i\''  fur  "gaming  house.")    , 

pose,  and  his  g^nin  wa<3  found  upon  such  use  of  it,  tlic  court  do  not  tliinit  a  statute  neces- 
sary to  inai<e  tiis  oflbncc  indictalile.  'I'iic  only  case  whicii  looks  to  tlie  contrary  is  the  one 
in  2  Ld.  Hay  in.  1 1!J7,  where  an  indictment  against  a  person  for  being  a  bawd  was  held  ill, 
that  being-  a  s[)irilual  offence.  Tiic  reason  does- not  hold  here,  as  wc  have  no  spiritual 
court,  and  it  does  not  appear  that  a  person  may  not  licre  be  indicted  for  being  a  bawd. 

"Though  we  have  strong  doulits  in  this  case  from  the  argument  of  Mr.  Dunhip,  and 
from  tl)i;  circumstance  that  no  case  has  been  found  of  an  indictment  for  tills  ollenee  in 
Eiiirland,  we  have  nevertheless  come  to  tlie  conclusion  that  there  is  no  objection  to  this 
indictment  on  the  ground  of  variance,  ai'id  that  the  facts  set  forth  constitute  an  indictable 
oiFence." 

(x)  Arch.  C.  P.  5th  Am.  ed.  752.  This  precedent  was  held  good  in  R.  ».  IJogier,  2  D. 
<fe  K.  4:31  ;  1  B.  &  (;.  272  ;  see  Hunter  v.  Com.,  2  S.  &  R.  2!J8.  Holroyd  J.,  in  R.  v.  Tay. 
lor,  .3  R.  &,  C.  .'j()2,  intimated  that  it  would  be;  enough  simply  to  charge  the  defiiidant  with 
l^|■e|>ing  a  common  gaming  honse  ;  and  such,  on  a  kiridnfl  ease,  is  the  leaning  of  the  Su- 
I>reiiie  Court  of  Mussachusetts;  Com.  c,  Piay,  13  Pick.  35J. 


NUISAVCE.  437 

Keeping  a  common  gamivg  house  at  common  law.     Another  form,  omit- 
ting the  averment  in  last  of  playing  rouge  et  noir.{y) 

Thai  M.  M.,  late  of,  &c.,  beiii^  an  idle  and  ill-disposed  person,  on, 
&c.,  and  on  divers  other  days  and  times  between  that  day  and  the 
day  of  the  taking  of  this  inquisition,  with  force  and  arms  at,  &c.,  a 
certain  common  gaming  house  there  situate,  for  his  lucre  and  gain, 
unlawfully  and  injuriously  did  keep(r)  and  maintain,  and  in  the  same 

(y)  Dickinson's  Q.  S.  6th  ed.  425  ;  see  3  B.  &  C.  502,  R.  c.  Josiah  Taylor.  "  Keeping 
the  liouse"  for  the  specified  purpose,  is  tlie  offence;  and  therefore,  like  keeping^  a  bawdy 
house,  g-eneral  evidence  will  support  an  indictment;  J.  Anson  v.  Stewart,  1  T.  R.  754. 

(«)  Keeping-  a  common  gaming  house,  and  tor  lucre  and  gain  unlawfullj-  causing  and 
procuring  diveis  idle  and  ill-disposed  persons  to  frequent  and  come  to  play  togetiier  at  a 
game  called  rouge  et  noir,  and  permitting  the  said  idle,  &.C.,  to  remain  playing  at  the  said 
game  for  divers  large  and  excessive  sums  of  money,  is  indictable  at  common  law;  R.  v. 
Roger,  I  B.  &,  C.  275 ;  2  D.  «&  R.  431,  S.  C;  Dickinson's  Q.  S.  Gth  ed.  425.  "Sec,"  says 
Mr.  Chitty,  3  C.  L.  673,  "other  precedents,  41  Went.  156;  6  ih.  3d4;  I  Bro.  237.  For 
keeping  a  common  raffling  shop;  Trem.  P.  C  241.  See  in  general  Hawk.  b.  1,  c.  92; 
Com.  Dig.  Justices  of  the  Peace,  B.  42;  Abr.  Gaming;  Burns  J.,  Gaming;  Williams  J., 
Gaming,  4  Bla.  Com.  171-174.  All  common  gaming  houses  are  nuisances,  not  only  from 
the  encouragement  to  dissipation  which  they  atford,  but  also  from  the  disturbance  they 
occasion  to  the  people  who  live  near  them,  by  the  numbers  of  idle  persons  whom  they 
biing  together  and  the  quarrels  they  necessarily  occasion;  Hawk.  b.  1,  c.  75,  s.  6;  and  in 
a  late  case,  it  was  held  that  the  keeping  of  a  common  gaming  house,  and  for  lucre  and 
gain  unlawfully  causing  and  procuring  divers  idle  and  evil  disposed  persons  to  frequent 
and  come  to  play  together  at  a  game  called  '  rouge  et  noir,'  and  permitting  the  said  idlo 
and  evil  disposed  persons  to  remain  playing  at  the  said  game,  for  divers  larg(;  and  excessive 
sums  of  money,  is  an  offence  indictable  at  common  law;  1  B.  &  C.  272  ;  2  D.  &,  R.  431  ; 
and  it  shall  seem  that  an  indictment,  merely  charging  the  defendant  with  keeping  a  com- 
mon gaming  house,  would  be  good  ;  per  Holroyd  J.,  ih.;  see  also  Bac.  Abr.  Gaming,  and 
Com.  Dig.  Justices  of  the  Peace,  B.  (42)  (A)." 

On  this  point,  Bronson  C.  J.,  in  People  v.  Jackson,  3  Denio  101,  says:  " 'iVe  have  not 
enacted  the  statute  33  Hen.  VIII.  c.  9,  s.  1 1,  against  gaming  houses;  (see  1  Hawk.  P.  C. 
72],  Curwood's  ed.).  Still  I  have  no  doubt  that  the  keeping  of  a  comincm  gaming  house 
is  indictable  at  the  common  law;  (The  King  p.  Rogier,  1  B.  &(;.  272;  The  People  r. 
Sergeant,  8  Cowen  139).  It  is  illegal  because  it  draws  together  evil  disposed  persons, 
encourages  excessive  gaming,  idleness,  cheating  and  other  corrupt  practices,  and  tends  to 
public  disorder.  Nothing  is  more  likely  to  happen  at  such  places  than  breaches  of  the 
public  peace;  (1  Hawk.  P.  C.  693,  s.  6;  Roscoe  Cr.  Ev.  663,  ed.  of  1836;  I  Russ.  on  Cr. 
290,  ed.  of  1836;  3  Chit.  C.  L.  673,  note,  ed.  of  1819;  Arch.  C.  P.  600,  ed.  of  1840). 
But  it  is  not  so  of  a  house  or  room  for  the  illegal  sale  of  lottery  tickets.  .Men  do  not 
congregate  at  such  places.  On  the  contrary,  they  go  in  one  at  a  time,  and  the  business  is 
transacted  behind  screens  and  in  corners  where  there  is  no  witness.  There  is  enough  of 
evil  in  it,  but  no  tendency  to  breaches  of  the  public  peace.  It  is  true  that  an  unauthorized 
lottery  is  a  public  nuisance;  (1  Rev.  Stat.  665,  s.  26).  But  a  place  for  the  sale  of  tickets 
is  not  a  lottery.  Keeping  an  office  or  other  place  for  registering  tickets  in  an  unauthorized 
lottery  is  expressly  forbidden,  (s.  31) ;  but  there  is  no  prohibition  against  keeping  an  office 
or  ])lace  for  the  sale  of  tickets.  I  see  no  principle  on  which  the  first  count  can  be  sun- 
ported. 

"  The  second  count  charges  the  keeping  of  an  ill-governed  and  disorderly  room  for  the 
sale  of  tickets.  The  pleader  has  substituted  the  sale  of  tickets  for  such  things  as  arc 
usually  done  in  bawdy  houses.     This  count  is  worse  than  the  others." 

The  statute  33  Hen.  VIII.  c.  9,  s.  11,  enacts  'that  no  person  shall  for  his  gain,  lucre  or 
living,  keep  any  common  house,  alley  or  place  of  bowling,  coyling,  cloysh,  cay  Is,  halt- 
bowl,  tennis,  dicing-table,  carding  or  any  unlawful  game,  tlien  or  thereafter  to  be  invented, 
on  pain  of  forfeiting  forty  shillings  a  day.  But  upon  this  clause  it  has  been  decided  that 
if  the  guests  in  an  inn  or  tavern  call  lor  a  pair  of  dice  or  tables,  if  the  house  be  not  for 
gaming,  lucre  or  gains,  but  they  only  |)lay  tor  recreation  and  for  no  gain  to  the  owner  of 
the  house,  this  is  not  within  the  statute,  nor  is  such  person  that  plays  in  si  "h  house  that 
is  not  kept  for  lucre  or  gain,  within  the  penalty  of  that  law;  Dalt.  c.  46.  By  5  Geo.  VI. 
c.  P3,  s.  4,  every  person  playing  or  betting  in  any  open  or  public  plice,  at  or  with  any  ta- 
bic or  instrument  of  gaming,  at  any  game  or  pretended  game  of  chance,  may  be  treated 

37** 


43S  OFFENCES  AGAINST  SOCIETY. 

common  gaming  house,  on  the  said,  &c.,  and  on  the  said  other  days 
and  times  there,  unlawfully  and  injuriously  did  cause  and  procure 
divers  idle  and  ill-disposed  persons  to  frequent  and  come  together  to 
game  and  play,  and  the  same  idle  and  ill-disposed  persons  to  be  and 
remain  in  the  said  common  gaming  house,  and  to  game  and  play  to- 
gether, on  the  said,  &c.,  at,  &c.,  and  on  the  said  other  days  and  times 
there,  did  unlawfully  and  injm-iously  procure,  permit  and  suffer,  by 
means  whereof  divers  noises,  disturbances  and  breaches  of  the  peace 
of  the  said  state,  then  and  on  the  said  otlier  days  and  times,  were 
tliere  occasioned  and  committed;  to  the  great  encouragement  of  idle- 
ness and  dissipation,  to  the  great  damage  and  common  nuisance,  &c., 
and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Second  count. 

Like  the  first  only  say  img'.  "a  certain  common  gaming  room  in 
a  certain  house." 

Third  count.     The  game  'played  being  ha-iurd. 

That  the  said  M.  M.  on,  &c.,  and  on  divers  other  days  and  times 
between  that  day  and  the  said,  &c.,  with  force  and  arms  at,  &c., 
aforesaid,  a  certain  other  gaming  house  there  situate,  unlawfully  and 
injuriously  did  keep  and  maintain,  for  the  gaming  and  playing  at  a 
certain  and  unlawful  game  with  dice  called  hazard,(«)  and  in  the  said 
last  mentioned  common  gaming  house,  on,&c.,  in  the  year  aforesaid, 
and  on  the  said  last  mentioned  days  and  times,  there  unlawfully  and 
unjustly  did  cause,  procure,  permit  and  suffer  divers  idle  and  ill-dis- 
posed persons  to  frequent  and  come  together  to  game  and  play  toge- 
ther at  the  said  unlawful  game  called  hazard,  and  the  said  last  men- 
tioned idle  and  ill-disposed  persons  to  be  and  remain  in  the  said  last 
mentioned  coiumon  gaming  house,  and  to  game  and  play  together  at 
tlie  said  unlawful  game  called  hazard,  on  the  said,  &c.,  and  on  the 
said  last  mentioned  other  days  and  times  there  did  unlawfully  and  in- 
juriously procure,  permit  and  suffer  the  said  last  mentioned  persons, 
in  the  said  last  mentioned  gaming  house  there,  on  the  said,  &c.,  and 
on  the  said  other  days  and  times,  by  such  last  mentioned  procure- 
ments, permission  and  sufTerance  of  the  said  M.  M.,  did  game  and  play 

as  a  vagfmnt  within  the  act,  hut  playing  at  bowls  is  not  within  the  act;  1  Cowp.  c.  35; 
PaleybS,  110. 

A  house  in  which  a  faro  table  is  kept  for  the  purpose  of  common  gamblino-,  is  per  se 
a  nuisiincc,  and  it  is  not  necessary  to  constitute  it  sucli,  that  there  should  be  proof  of  fre- 
(jurnt  aftrnys  and  disturhanccs  conitniltcd  there;  State  v.  Doom,  C'harlton  1 ;  Bac.  Abr. tit. 
Nuisanrx',  1  }lawk.  P.  C.  c.  76,  s.  6;  R.  v.  Dixon,  10  Mod.  330;  1  Russ.  on  Cr.  3-^1. 

The  facts  wliich  may  be  given  in  evidence  to  one  indicted  as  a  common  gambler,  arc 
not  merely  those  perpetrated  within  the  county  where  the  bill  is  found;  foundation  being 
first  shown  by  proof  of  the  corpus  delicti,  it  may  be  proved  that  he  kept  a  faro  bank  or 
gaming  table,  or  had  otherwise  been  guilty  of  unlawful  gaming,  in  other  counties;  Com. 
r>.  Ho|)kins,  2  Dana  420;  sed  qucre. 

A  single  act  of  gaming,  unaccompanied  with  circumstances  of  aggravatiou,  is,  it  is 
s.'iid,  not  such  a  misdenicanor  as  will  authorize  a  court  to  require  sureties  for  good  beha- 
viour;   Estes  V.  State,  2  Ilumpli.  'Ifilt. 

An  indietmenl  under  the  South  Carolina  act  of  assembly  of  1816,  to  prevent  gaming, 
against  a  person  for  permitting  persons  to  play  cards  at  his  house,  being  a  public  house, 
is  not  good,  unless  it  state  that  the  persons  were  playing  at  such  games  as  were  not  ex- 
cepted  in  the  net,  and  where  a  conviction  had  taken  place  en  sucli  an  indictment  the  judg- 
ment was  arrested;  Reynolds  ii.  State,  2  N    &.  M'Cord  3G5. 

(a,  See  stat.  33  lien.  VUl.  c.  9;  1  Hawk.  c.  92-;  and  42  Geo.  III.  c.  119,  respecting 
Little  Goes  ;  Dickinson's  Q.  S.  6tb  ctl.  42G. 


NUISANCE.  439 

together  at  the  said  utilawful  game  called,  &c. ;  to  the  great  danger, 
&.C.,  {as  ill  the  first  count). 

Four  III  count. 

Like  the  third  saying:  "common  gaming  room,"  &c.,  as  in  the 
second. 

Same,  and  'permitting  persons  unknown  to  play  at  E.  0.(h) 

And  the  jurors,  &c.,  do  further  present,  that  W.  W.  being  such  idle, 
&c.,  and  not  minding,  &.c,,  on,  &c.,  aforesaid,  and  on  divers  other  days, 
&c.,  with  force  and  arms  at,  &c.,  aforesaid,  a  certain  common  gaming 
house  there  situate,  for  his  lucre  and  gain,  unlawfully  and  injuriously 
did  keep  and  maintain,  and  in  the  said  last  mentioned  gaming  house 
a  certain  common  gaming  table  called  an  E.  0.  table,  for  the  use  and 
purpose  of  divers  idle  and  ill-disposed  persons  whose  names  are  to 
the  jurors  aforesaid  unknown,  to  resort  and  frequent,  and  come  toge- 
ther to  play  at  a  certain  unlawful  game  called  E.  0.,  did  then  and 
there,  to  wit,  on,  &c.,  aforesaid,  and  on  the  said  other  days  and  times 
there,  unlawfully  and  injuriously  keep  and  maintain,  and  did  cause 
and  procure  and  permit  and  suffer  divers  idle,  &.c.,  to  frequent  and 
come  together  to  game  and  play  at  and  with  the  said  common  gam- 
ing table,  at  the  aforesaid  game  called  E.  0.,  and  the  said  idle,  &c.,  to 
be  and  remain  at  the  said  last  mentioned  common  gaming  table,  at 
the  aforesaid  unlawful  game  called  E.  0.,  then  and  there,  to  wit,  on, 
&c.,  at,  ike,  and  on  the  divers  other  days  and  times  at,  &c.,  did  uiilaw- 
fuUy  and  injuriously  procure,  permit  and  sutler,  to  the  great  encou- 
ragement of  idleness  and  dissipation,  to  the  great  daniage  and  com- 
mon nuisance  of  all  the  liege  subjects  of  our  said  lord  the  king,  and 
against  the  peace,  &c.     (Conclude  us  in  book  1,  chap.  3). 

Fourth  count. 

Like  the  third,  with  the  same  difference  between  the  second  and 
first,  viz.  the  substitution  of  "  3.  certain  common  gaming  room." 
^dd  a  count  merely  charging  the  defendant  with  keeping  a  "com- 
mon gaming  house,"  fior  tvhich  see  Holroyd  J.  in  B.  <^*  C  212, 
though  per  contra,  Com.  v. 

Gaming  house.     Form  in  use  in  JVeio  York. 

That  A.  B.,  late  of,  &c.,  yeoman,  on,  &c.,  and  on  divers  otiier  days 
and  times  between  that  day  and  the  day  of  taking  this  inquisition, 
with  force  and  arms  at,  &c.,  a  certain  conmion  gaming  house  there 
situate,  for  his  lucre  and  gain  unlawfully  and  injuriously  did  keep 
and  maintain,  and  in  the  said  common  gaming  house  then  and  there 
unlawt'ully  and  injuriously  did  cause  and  procure  divers  idle  and  ill- 
disposed  persons  to  be  and  remain,  and  the  said  idle  and  ill-disposed 
persons  on,&c.,  in  the  year  last  aforesaid,  and  on  divers  othef  days  and 
times  between  that  day  and  the  day  of  taking  this  inquisition,  to  game 
together  and  play  at  cards,  dice,  billiards,  in  the  said  conmiou 

gaming  house  atbresaid,  then  and  there  did  unlawfully  and  injuriously 

{h)  3  Cliit.  C.  L.  674; 


440  OFFKiNCES  AGAINST  SOCIETV. 

procure,  permit  and  suffer,  and  the  said  idle  and  ill-disposed  persons 
then  and  there  in  the  said  common  gaming-  house  aforesaid,  on  the 
day  and  year  last  aforesaid,  and  on  the  said  other  days  and  times,  b.y 
such  procurement,  permission  and  sutferance  of  the  said  A.  B,,  did 
game  together  and  play  at  cards,  dice,  billiards,  {stating  other  games 
if  any),  for  money,  to  the  great  damage  and  common  nuisance,  &c., 
against,  &.c.     [Conclude  as  in  book  1,  chap.  3). 

Jlgaiiist  innholder  in   Massachusetts  for  suffering  cards  to  be  played, 
under  slat.  1798,  c.  20.{d) 

That  A.  B.,  late  &c.,  innholder,  on,  &c.,  at,  &c.,  being  then  a  person 
there  licensed  as  an  innholder  according  to  law,  &c.,  and  being  then 
and  there  in  the  exercise  of  said  employment  as  innholder,  did  un- 
lawfully suffer  and  allow  sundry  persons,  &c.,  to  play  at  cards  (and 
other  unlawful  games)  in  the  dwelling  house  of  him  the  said  B,, 
occupied  and  improved  by  him,  being  the  same  dwelling  house  in 
which  he  was  licensed  to  keep  his  inn  as  aforesaid,  against  the  peace, 
&.C.,  and  contrary,  &c.     (Conclude  as  in  book  1,  chap.  3). 

That  the  said  on  the  day  and  year  aforesaid,  and  at  the  place 

and  county  aforesaid,  being  there  duly  licensed  as  an  innholder  as 
aforesaid,  and  in  the  exercise  of  said  employment  as  innholder,  un- 
lawfully did  suffer  and  allow  a  great  number  of  persons  so  to  play  in 
his  inn  at  cards  and  keeno  table,  for  money,  against  the  peace,  &.C., 
and  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

.^gainst  an  innholder,  in  Massachusetts,  for  allowing  ninepins,  <^c.,  to  be 
played  on  his  premises.{e) 

That  A.  B.,  on,  &c.,  at.  Sic,  not  being  then  and  there  licensed  as  an 
innholder,  victualler  or  retailer  of  spirituous  liquors,  for  hire,  gain  and 


((/)  This  form,  with  the  exception  of  the  averment  in  brackets,  which  was  strucit  out 
as  surpiusufro,  and  with  the  introduction  of  the  allegation  iicre  inserted,  that  the  defendant 
was  in  exercise  of  his  employment  as  innkeeper,  seems  to  have  been  approved  by  the 
Supreme  Court  in  Com.  v.  BolUoin,  3  Pick.  281  ;  see  C'om.  v.  Arnold,  4  Pick.  251. 

(p)  Com.  V.  Goding-,  3  Mete.  2i)l  ;  Com.  v.  Stowell,  9  Mete.  573. 

In  the  latter  case,  Dewey  J.  s:iid:  "The  case  of  Com.  v.  Goding,  3  Mete.  130,  is  a  deci- 
sive aulliority  to  siiow  that  the  frame  of  bowls  is  an  unlawful  game  witliin  the  provisions 
of  the  Rev.  Stats,  c.  50,  s.  17.  'I'he  ne.vt  question  raided  is,  whether  it  be  competent  to 
charge  tlie  defendant  for  two  distinct  oftcnncs,  under  tiiat  statute.  If  the  otfence  charged 
was  tlie  keeping,  in  liis  dvvi-lhiig  house,  of  tables  for  tin;  purpose  of  playing  at  billiards, 
which  is  the  otli  nee  first  described  in  this  section,  ihe  argument  tiiat  this  was  one  conti- 
nuing offence,  and  not  susceptible  of  a  division,  or  properly  chargeable  as  distinct  olTenccs, 
would  deserve  consideration.     But  the  case  before  us  docs  not  piescnt  that  question. 

"The  statute  provides  that,  'if  any  j)erson  not  licensed  as  an  intdioldcr,  victualler  or 
retailer  of  spirituous  li()uors,  shall  keep  or  suffer  to  be  kept,  in  any  house,  building,  yard, 
garden  or  dejjendency  thereof,  by  him  actually  used  or  oeoiipied,  any  t;ibles  for  the  purpose 
of  playing  at  billiards,  for  hire,  gain  or  reward,  or  shall  for  hire,  gain  or  reward,  suffer  any 
person  to  resort  to  the  siime  for  the  purpo.se  of  playing  at  billiards  or  any  other  unlawful 
game,  every  person  so  oircnding  shall,  f<)r  every  such   olfence,  forfeit,'  &.C. 

"  It  is  this  latter  offence,  and  not  the  net  of  keeping  a  house  or  place  <br  playing  at  bil- 
liards,  iVe.,  which  is  the  subject  of  the  present  indictment.  The  offence  here  charged  is 
not  a  eonliiming  offence.  It  consists  in  pcrniitlinir  persons,  for  hire  and  reward,  to  resort 
to  a  building  used   by  the  defendant,  for  the   [lurpoM",  on   tlieir  jiart,  ol'  jilaying  at  bowls. 


NUISANCE.  441 

reward,  iiiilawfiiUy  did  siifTer  certain  persons,  whose  names  to  the 
jurors  are  unknown,  to  resort  to  a  certain  building  there  situate,  and 
by  said  A.  B.  then  and  there  actually  used  and  occupied  for  the  pur- 
pose of  playing  at  bowls  and  ninepins,  the  same  being  then  and  there 
an  unlawful  game,  against  the  peace,  &c.  {Conclude  as  in  book  \ , 
chap.  3). 

Against  same  for  keeping  gaming  cocks,  under  Rev.  Slat.  c.  47,  s.  9.{f) 

That  T.,  &c,,  at,  &c.,  on,  &c.,  did  have  in  his  the  said  T.'s  house,  in 
said  W.,  certain  game-cocks,  the  said  game-cocks  being  then  and 
there  implements  of  gaming,  the  said  T.  being  then  and  there  duly 
hcensed,  according  to  law,  as  an  innholder,  and  the  said  house  being 
tlie  same  in  which  the  said  T.  was  so  licensed,  according  to  law  as 
an  innholder,  as  aforesaid;  and  he  the  said  T.,  being  then  and  tliere 
in  said  liouse,  in  the  occupation  of  an-  innholder  as  aforesaid,  under 
said  license,  and  he  the  said  T.  did  then  and  there  suffer  certain 
persons  then  and  there  resorting  to  said  house,  to  wit,  A.  B.,&:c.,  and 
C.  D.,  &c.,  then  and  there  to  use  and  exercise,  within  his  the  said  T.'s 
said  house,  the  game  of  cock-fighting,  the  same  being  an  unlawful 
game,  to  wit,  with  the  game-cocks  aforesaid  ;  against,  &c.,  and  con- 
trary, &c.     (Conclude  as  in  book  1,  chap.  3). 

Against  tavern-keeper  for  permitting  unlawful  gaming  in  PennsyJvania.{g) 

That  A.  B.,&c.,on,  &c.,  and  at  divers  other  days  and  times  between 
that  day  and  the  day  of  the  taking  this  inquisition,  with  force  and 
arms,  &c.,  at,  &c.,  then  i  nd  at  the  said  other  days  and  times  being  a 
tavern-keeper  and  a  retailer  of  spirituous  liquors  within  the  said 
county,  unlawfully  did  permit  and  allow  divers  games  of  address  and 
hazard  at  cards  to  be  practised  aiid  played  at  for  money  within  his 
house  in  the  said  county;  and  then  and  the  said  other  days  and  times, 

This  offence  maybe  repeated  from  day  to  day,  and  in  connexion  with  different  individuals, 
and  of  course  may  be  the  subject  of  distinct  indicinioiits,  or  distinct  counts  in  the  same 
indictment. 

"  Such  being  the  nature  of  the  offence,  it  is  properly  chai  od  on  a  single  day  certain,  and 
not  on  divers  days  and  times. 

"  It  is  then  objected  to  tlie  sufficiency  of  this  indictment,  tliat  it  does  not  allege  that  the 
persons  who  resorted  to  tlie  building-  used  by  the  defendant,  actually  played  there  at  the 
game  of  bowls.  But  the  statute  offence  is  complete,  if  they  were  permitted  by  the  de- 
fendant to  resort  to  a  building  by  him  used  tor  the  purpose  of  playing  at  bowls.  The 
indictment  is,  we  think,  sufficient  in  this  respect. 

"  It  is  furthei-  objected  to  the  indictment,  that  it  does  not  allege  that  any  persons  resorted 
to  the  building  of  the  defendant  for  tlie  [lurpose  of  pluyins'  at  bowls.  This  objection 
Arises  upon  the  collocation  of  the  words  'for  the  purpose  of  playing  at  bowls.'  These 
words,  alleging  the  purpose,  &c  ,  are  supposed  by  the  counsel  f!>r  the  defendant  lo  be  solely 
ap[)licable  to  the  building,  and  introduced  to  dcHne  the  character  of  the  house,  and  not  the 
purpose  for  which  the  visitors  resorted  to  the  house.  This,  as  it  seems  to  us,  is  an  erro- 
neous reading  of  the  indictment.  The  allegation  of  '  the  pur|)ose  of  playing  at  bowls,' 
seems  more  distinctly  to  be  applied  to  the  persons  who  resorted  to  the  house. 

"The  allegation  is,  that  the  building  was  actually  used  and  occupied  by  the  defendant, 
and  that  while  it  was  thus  occupied  and  used,  he,  for  hire  and  reward,  permitted  certain 
persons  to  resort  thereto  for  the  purpose  of  playing  at  bowls.  The  language  is  reasonably 
certain,  and  brings  the  case  within  the  statute." 

(/)  (-om.  V.  Tilton,  8  Mete.  234. 

{g)  Tills  indictment  originally  appeared  in  Iteed's  Digest. 


442  OFFENCES  AGALVST  SOCIETY. 

in  his  said  house,  did  permit  divers  persons  to  the  inquest  aforesaid 
unknown,  to  be  and  remain  playing,  betting  and  gaming  for  money, 
at  cards  and  other  unlawful  gaines;  to  the  evil  example,  &c.,  con- 
trary, &c,,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Against  a  -person  in  same,  for  keeping  a  gambling  device  called  sweat- 
cloth.{fi) 

That  L.  W.,  late  of,  &c.,  yeoman,  on,  &c,,  at,  &c.,  unlawfully  did 
publicly  and  privately  set  up,  erect,  make,  exercise,  keep  open,  show 
and  expose  to  be  played  at,  drawn  at  and  thrown  at  by  dice,  numbers 
and  figures,  a  certain  play  and  device  called  sweat-cloth,  and  then 
and  there  Unlawfully  did  cause  and  procure  to  be  set  up,  erected, 
made,  exercised,  kept  open,  showed  and  exposed  to  be  played  at, 
drawn  at  and  thrown  at,  by  dice,  numbers  and  figures,  a  certain  play 
and  device  called  sweat-cloth,  contrary,  &c.,  to  tlie  common  nuisance, 
&c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count.     Common  gaming  house. 

That  the  said  L.  W.,  on  the  day  and  year  aforesaid,  at  the  county 
aforesaid  and  within  the  jurisdiction  of  this  court,  with  force  and 
arms,  &c.,  did  keep  and  maintain,  and  yet  doth  keep  and  maintain,  a 
certain  common,  ill-governed  and  disorderly  gaming  house  there  situ- 
ate, and  then  in  his  said  gaming  house  did  cause,  entice  and  procure 
divers  disorderly  and  idle  persons  to  come  and  resort,  and  then  and 
there  in  liis  said  house,  the  same  disorderly  and  idle  persons  to  be 
and  remain  drinking,  tippling,  gaming  and  playing  at  unlawful  games 
with  dice,  numbers  and  figures,  for  money,  liquor  and  other  valuable 
things,  unlawfully  did  procure,  permit  and  suffer,  to  the  common 
nuisance,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chajj.  3). 

Gambling  under  Pennsylvania  act  of  1847.    First  count,  heeping  a  room 
for  gambling.if) 

That  T.  E.  J.  K.,  late  of,  &c.,  yeoman,  and  R.  B.,  late  of,  &c.,  yeo- 
man, on,  &,c.,  at,  &c.,  unlawfully  did  keep  a  room  to  be  used  and 
occupied  for  gambling,  and  did  knowingly  permit  the  same  to  be 
used  and  occupied  for  gambling,  to  Ihe  great  scandal  of  public  morals, 
to  the  evil  example,  &c.,  contrary,  &c.,  and  against,  &c.  {Conclude 
as  in  book  1,  chap.  3). 

Second  count.     Exhibiting  gamhliiig  apparatus. 

That  the  said  T.  E.  J.  K.  and  the  said  R.  B.,  on  the  day  and  year 
aforesaid,  at  the  county  and  within  the  jurisdiction  aforesaid,  unlaw- 
fully did  keep  and  exhibit  a  certain  gaming  table,  and  devices  and 
apparatus  to  win  money  thereat  and  therewith,  contrary  to  the  form 
of  the  act  of  the  general  assembly  in  such  case  made  and  provided, 
to  the  evil  example,  &.C.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Third  count.     Aiding  persons  unknown  in  keeping  a  gambling  table. 

That  the  said  T.  E.  J.  K.  and  R.  B.,  on  the  day  and  year  aforesaid, 

{h)  Drawn  in  1808,  by  Mr.  Thomas  Sorfrcanl,  then  dc|)utv  attorney-general. 

(i)  These  counts  were  sustained  in  Com.  c.  Kerrison,  Thiladulpliia,  Sept.  T.  1847. 


NUISANCE.  443 

at  t!ie  county  and  within  the  jurisdiction  aforesaid,  unlawfully  did 
aid  and  assist  certain  persons  whose  names  are  to  the  inquest  afore- 
said as  yet  unknown,  to  keep  a  certain  gaming  tahle,  and  device  and 
apparatus  thereto  belonging,  to  win  and  gain  money  thereat  and 
therewith,  contrary,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Fourth  count.     Persuading  J.  S.  to  visit  a  gambling  room. 

That  the  said  T.  E.  J.  K.  and  R.  B.,  on  the  day  and  year  aforesaid, 
at  the  county  and  within  the  jurisdiction  aforesaid,  did  unlawfully 
persuade  and  prevail  on  one  J.  \V.  S.,  by  means  of  an  invitation  then 
and  there  given  by  the  said  T,  E.  J.  K.  and  R.  B.,  to  the  said  J., 
to  visit  a  certain  room  then  and  there  kept  for  the  use  of  gambling, 
contrary,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Against  a  tavern-keeper  for  holding  near  kis  house  a  horse  race,  under 
the  Pennsylvania  statute.{j) 

That  S.  B.,  late  of,  Sic,  yeoman,  on,  &c.,  at,  &:c.,  the  said  S.  then  and 
there  being  the  keeper  of  a  public  house,  a  certain  horse  race  on,  &c., 
had,  holden  and  run,  near  the  house  of  the  said  S.  B.,  at  which  said 
horse  race,  divers  sums  of  money  and  other  valuable  things  were 
betted,  staked  and  striven  for,  and  were  lost  and  won,  did  incite, 
promote  and  encourage,  contrary,  &c.,  and  against*,  &c.  {Conclude 
as  in  book  1,  chap.  3). 

That  afterwards,  to  wit,  on  the  day  and  year  last  aforesaid  at  the 
county  aforesaid,  a  certain  horse  race  was  ha^,  holden  and  run,  near 
the  house  of  the  said  S,  B.,  at  which  said  horse  race  divers  sums  of 
money  and  other  valuable  things  were  betted,  staked  and  striven 
for  and  were  lost  and  won,  and  tliat  certain  evil  and  ill-disposed  per- 
sons being  then  and  thus  assembled  together  and  attending  at  and 
upon  the  said  horse  race,  the  said  S.  B.,  on  the  day  and  year  afore- 
said, at  the  county  aforesaid  and  within  the  jurisdiction  of  this  court, 
&c.,  to  the  said  evil  and  ill-disposed  persons  so  assembled  together 
and  as  aforesaid  then  and  there,  had  holden  and  nm,  divers  quan- 
tities of  wines,  Spirituous  liquors,  beer,  cider  and  other  strong  drink 
did  furnish,  contrary  &c.,  and  against,  &.c.  Conclude  as  in  book  1, 
chap.  3). 

For  a  masquerade,  under  Pennsylvania  statute  of  15th  February,  1808. (A) 

The  grand  inquest  of  the  Commonwealth  of  Pennsylvania,  inquiring 
for  the  of  upon  their  oaths  and  affirmations  respectively 

do  present,  that  late  of,  &c.,  on,  &c.,  at,  &:c.,  did  set  on  foot, 

promote  and  encourage  a  masquerade  within  the  aforesaid,  to 

the  great  danger,  &:c.,  to  the  common  nuisance,  &c.,  contrary,  &c., 

and  against,  «kc.     {Conclude  as  in  book  1,  chap.  3). 


{j)  This  form  was  prepared  by  Jared  IngersoII,  Es'i.,  tlie  then  attorney-general  of  Penn- 
sylvania, 
(i)  4  Smith  L.  490. 


444  OFFENCES  AGAINST  SOCIETY. 

Gaming  icith  persons  of  colour,  under  the  South  Carolina  statute. 

That  A.  B.,  being  a  white  person,  on,  &c.,  at,  &c.,  unlawfully  did 
game  at  a  certain  game  played  with  and  did  then  and  there 

unlawfully  bet  upon  a  certain  game,  then  and  there  played  with 
by  the  said  and  to  which  the  said  then  and 

there  part  ;  and  then  and  there  unlawfully  and  willingly 

was  present,  aiding  and  abetting  the  said  in  then  and  theie 

playing  with  at  a  certain  game  of  chance,  against,  &c.,  and 

against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Gaming  in  Alabama.     First  count,  playing  at  cai'ds. 

That  A.  B.  late  of,  &c.,  on,  &c.,  in  the  county  aforesaid,  did  play 
at  a  game  with  cards  in  a  tavern  there  situate,  against,  &c.,  and  con- 
trary, &c.     [Conclude  as  in  book  1,  chap.  3). 

That  the  said  A.  B.  late  of,  &c.,  on  the  day  and  year  aforesaid,  in 
the  county  aforesaid,  did  play  at  a  game  with  cards  in  a  house  where 
spirituous  liquors  were  then  and  there  retailed,  contrary,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

That  the  said  A,  B.  late  of  said  county,  on  the  day  and  year  afore- 
said, in  the  county  aforesaid,  did  play  at  a  game  with  cards  in  a  pub- 
lic place,  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Keeping  a  gaming  table  in  Alahama.(J) 

That  R.  W.  W.,  late  of,  &c.,  on,  &c.,  in  the  county  aforesaid,  did 
keep  and  exhibit  a  certain  gaming  table,  called  a  laro-bank,  played 
with  cards,  and  kept  for  gaming,  contrary,  &c.,  and  against, &c.  [Con- 
clude as  in  book  1,  chap.  3). 

At  common  law,  for  nuisance  in  an  open  profanation  of  the  Lord's  day, 
by  keeping  skop.{m) 

That  A.  B.,  late  of,  &c.,  butch€r,  on,  &c.,  and  continually  afterwards 
until  tlie  day  of  taking  this  inquisition,  at,  &c.,  was  and  yet  is  a  com- 

.  {I)  State  V.  VVhitworth,  8  Port.  435. 

(?«)  Dickinson's  Q.  S.  tJth  ed.  389. 

Particular  instances  of  profanation  of  the  Lord's  day,  or  Sunday,  are  by  several  statutes 
made  punisiiablc  before  magistrates;  but  it  is  also  said  to  be  indictable  at  common  law. 
2  East  P.  C.  c.  1,  s.  3  ;  and,  as  it  seems,  as  a  breacli  of  public  decency.  Mr.  East  g-oes 
on  to  mention  the  above  precedent,  citing-  an  early  edition  of  ibc  Crown  Circuit  Coinp. 
155,  and  1  Hawks,  c.  G,  s.  1,2,3.  "  At  sessions,"  says  Hawkins  (ed.  1787),  book  1,  c. 
G,  "it  is  usual  to  indict  for  tlie  nuisance  in  keeping  open  shop,"  and  cites  Crown  Circuit 
Comp.  372.  The  eifrhlh  and  latter  editions  of  that  work,  however,  omit  the  above  prece- 
dent. A  butciier  might  kill  or  sell  victuals  on  Sunday  belbre  3  C-.  I.  c.  1 ;  accor<lingly,  an 
indictment  against  a  butcher  lor  exercising  his  trade  on  a  Sunday,  was  held  bad  on 
demurrer,  for.  not  coneluding  against  the  form  of  the  statute ;"  K.  v.  nrolherton,  Stra.  702. 
Querc,  for  the  act  makes  it  only  the  sul)jeet  of  a  penalty  recoverable  belbre  a  justice.  Sec 
also  4  HI.  C.  63;  1  Taunt.  1.34. 

In  i\liddlesex,  precepts  have  for  many  ages  issued  each  term  from  the  crown  olTicc, 
directed  to  the  constables  in  the  ditferent  districts,  to  make  returns  to  the  grand  jury,  by 
way  of  presentment  of  all  nuisances  and  profaners  of  the  Lord's  day,  &c.,  in  order  that 
they  may  be  proceeded  against  according  to  law.  These  returns,  when  made,  are  consi- 
dered as  [iresentments,  and  uiay  be  prosecuted  as  such,  or  as  indictments;  1  Chit.  C.  L.  4ih 


\uiSA\cE.  445 

mon  Sabbath  breaker  and  profaner  of  the  Lord's  day,  commonly 
called  Sunday  ;  and  that  the  said  A.  B.,  on,  &c.,  being  the  Lord's  day, 
and  on  divers  other  days  and  times,  being  the  Lord's  days,  during  the 
time  aforesaid,  at,  &c.,  in  a  certain  place  there  called,  &c.,  did  keep  a 
common,  public  and  open  shop,  and  in  the  same  shop  did  then  and 
on  the  said  other  days  and  times,  being  the  Lord's  days,  there  openly 
and  publicly  sell  and  expose  to  sale  flesh  meat  to  divers  persons  to 
the  jurors  aforesaid  as  yet  unknown  ;(/2)  to  the  common  nuisance, (o) 
&c.,  and  against,  &,c.     (^Conclude  as  in  book  I,  chap.  3). 

Keeping  shop  open,  or  trafficking  on  the  Sabbath,  on  Charleston  JVeck.(p) 

That  A.  B.,  being  the  owner  and  occupier  of  a  grocery  store  and 
retail  shop,  situate  in  the  parish  of  St.  Pliilip,  in  the  district  of 

Charleston,  and  state  aforesaid,  and  within  the  limits  of  Charleston 
Neck,  in  which  said  store  and  shop,  spirituous  liquors  were  and  are 
usually  vended,  on,  &c.,  being  the  Sabbath  day,  with  force  and  arms, 
at,  &c.,  unlawfully  did,  (staling  offence),  against,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Doing  business  on  Sunday,  against  the  Massachusetts  statute.{pp) 

That  A.  B.;  late  of,  &c.,  on,  &c.,  that  day  being  Lord's  day,  and 
between  the  hour  of  twelve  of  the  clock  at  night  on  the  Saturday 
night  preceding  said  Lord's  day,  and  the  time  of  the  sun's  setting  on 
said  Lord's  day,  at,  &c.,  did  keep  open  his  shop,  there  situate,  tor  a 
long-time,  to  wit,  for  the  space  of  one  hour,  for  the  purpose  of  doing 
labour,  business  and  work  therein,  not  being  works  of  necessity  or 
charity,  namely,  selling  goods  and  merchandise  therein  on  said  Lord's 
day,  as  aforesaid,  against,  &c.,  and  contrary,  &c.  (Conclude  as  in 
book  1,  chap.  3). 

ed.  310.  In  practice,  however,  afler  appearance  entered  for  defendant,  the  proceeding' 
is  in  general  abandoned  ;  7  &  8  Geo.  IV.  c.  38,  does  not  extend  to  prevent  present- 
ments (at  least  in  Middlesex),  by  constables  against  persons,  for  that  they  "beintf 
common  Sabbath  breakers  and  profaners  of  the  Lord's  day,  commonly  called  Sunday,  did 
on  certain  Sabbath  days  and  hours  during  the  celebration  of  divine  service,  keep  open 
shop,  and  therein  openly  sell  divers  goods."'  This  subject  liaving  been  brought  before  tlie 
Court  of  King's  Bencli,  in  Trin.  T.  1837,  by  the  grand  jury  of  Middlesex,  Mr.  Justice  Lit- 
tleton, in  his  charge  to  them  on  11th  November,  1837,  stated  that  the  presentments  of 
nuisances,  &e.,  by  the  constables  to  tiie  grand  Juries,  were  of  the  most  remote  antiquity, 
and  must  be  considered  deliberately  by  the  latter,  who  must  proceed  to  present  such 
offences  of  profanation  of  the  S.ibbath  as  should  be  returned  to  them,  and  thus  afford  the 
opportunity  of  proceeding  on  such  |)re3entinents,  to  any  person  who  might  take  tiieui  up. 
He  also  declared  that  Sunday  trading,  if  carried  on  to  any  extent  which  creates  a  nui- 
sance (see  1  Taunt.  134),  or  obstruction,  was  indictable  at  common  law;  but  tiiat  a  mere 
act  of  selling  on  the  Lord's  day  was  not  now  moie  indictable  than  it  had  been  for  the  last 
seven  hundred  years.     Dickinson's  Q.  S.  fith  ed.  3S'J. 

By  a  Saxon  law  of  king  Athelslan,  cited  2  Inst.  226,  "  Die  autem  dominicio  nemo 
mercaturam  facito;  id  quod  si  quis  egerit,  et  ipsa  raerce,  et  triginta  pra?terea  solidis 
mulctator." 

The  constitutionality  of  laws  of  this  class,  has  recently  been  vindicated  ii)  Com.  v.  Specht, 
Supreme  C'ourt  of  Pennsylvania,  June,  1848. 

(n)  If  tiiey  are  known,  their  names  must  be  stated.     Dickinson's  Q.  S.  6th  ed.  390. 

(o)  Tills  allegation  was  omitted  in  R.  v.  Brotherton,  Stra.  702,  as  well  as  '"agiiinst  the 
form  of  the  statute."  Such  an  act  done  in  a  corner  might  perhaps  not  be  indictable  at 
common  law.    Drury  v.  Desfontaiues,  1  Taunt.  131 ;  Dickinson's  Q.  S.  6th  ed.  390. 

(p)  Taken  froui  the  printed  form  in  use  in  Charleston. 

{pp)  Taken  from  the  printed  form  in  use  in  Boston. 
38 


44G  OFFENCES  AGAINST  SOCIETY. 

That  A.  B.,  of,  &c.,  on,  «fcc.,  that  day  being  Lord's  day,  and  be- 
tween the  midnight  preceding  and  the  midnight  succeeding  said  day, 
at  Boston  aforesaid,  he  then  and  there  being  a  person  keeping  a  certaiii 
lioase,  shop  and  place  of  pubhc  entertainment  and  refreshment,  there 
situate,  did  then  and  there  suffer  certain  persons  whose  names  to  said 
jurors  are  not  known,  to  the  number  of  to  abide  and  remain 

in  his  said  house,  shop  and  place  of  business,  drinking  and  spending 
their  time  idly,  said  persons  not  being  travellers,  strangers  or  lodgers 
in  his  house  and  shop  and  place  of  business  aforesaid,  and  did  then 
and  there,  and  between  the  midnight  preceding  and  the  midnight 
succeeding  said  Lord's  day,  entertain  said  persons  to  the  said  number 
of  in  his  said  house,  shop  and  place  of  business,  against,  &c., 

and  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

That  A.  B.,  of,  &c.,  on,  &c.,  between  the  midnight  preceding  and 
the  sun-setting  of  said  day,  that  day  being  the  Lord's  day,  did,  at  Bos- 
ton aforesaid,  do  certain  work,  labour  and  business,  not  being  works  of 
necessity  and  charity,  to  wit,  did  then  and  there  work,  labour,  and  do 
business,  work  and  labour  in  against,  &c.,  and  contrary,  &c. 

{Conclude  as  in  book  1,  chap.  3). 

That  A.  B.,  of,  &c.,  on,  &c.,  at,  &c.,  he  then  and  there  not  being 
licensed  as  an  innholder,  tavern-keeper,  common  victualler,  or  retailer 
of  wine,  rum,  brandy  or  other  spirituous  liquor,  did  sell  to  a  person 
whose  name  is  as  yet  unknown  to  said  jurors,  a  certain  quantity  pf 
intoxicating  liquor,  to  wit,  one-half  of  a  gill  of  intoxicating  liquor, 
the  same  day  of  being  Sunday,  and  the  time  of  said  sale 

of  said  intoxicating  liquor  being  between  the  hour  of  twelve  of  the 
clock  on  the  Saturday  night  preceding  said  Sunday,  and  the  time  of 
the  sun-setting  on  said  Sunday,  against,  &c.,  and  contrary,  &c. 

{Conclude  as  in  book  \,  chap.  3). 

Offering  putrid  meat  for  sale.{q) 

That  C.  C,  late  of,  &c.,  butcher,  on,  &c.,  unlawfully,  knowingly 
and  mischievously,  at,  &c.,  in  the  public  market  there  situate,  did 
expose  and  offer  lor  sale  as  good,  sound  and  wholesome  meat  and 
provisions,  to  divers  liege  subjects  of  the  Commonwealth  of  Pennsyl- 
vania, fifty  pounds'  weight  of  beef  and  upwards,  the  same  beef  then 
and  there  being  infected,  putrid,  corrupted  and  unsound  and  un- 
wholesome meat  and  provisions,  he  the  said  C.  then  and  there  well 
knowing  the  said  beef  to  be  as  aforesaid  putrid,  infected,  corrupted, 
unsound  and  unwholesome,  to  the  great  damage  of  the  health,  and 
to  the  nuisance,  &.C.,  and  against,  &.c.  {Conclude  as  in  book  1, 
chap.  3). 

Another  form  for  lite  same.{r) 

That  S.  S.,  Jr.,  late  of,  &c.,  farmer,  on,  &c.,  at,  &c.,  did  then  and 
there  unlawfully,  falsely,  maliciously,  mischievously  and  deceitfully 

(7)  Drawn  by  Mr.  Bradford, 
(r)  State  v.  Smith,  .'}  Hawks  378. 

Taylor  C.J:  "The  first  exception,  taken  botli  as  a  frround  for  a  new  trial,  and  in  arrest 
of  judgment,  that  tliero  is  rjo  cliarge  of  the  dereudaiil's  being  a  trader  in  beef,  cannot  be 


NUISAN'CE.  4  17 

sell  and  dispose  of  to  one  D.  C.  and  others,  certain  uuwholesonis 
and  poisonous  beef,  and  did  then  and  there  receive  pay  for  the  same, 
to  the  great  injury  of  the  said  D.  C.  and  his  family,  to  the  great 
nuisance,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Exhibiting  scandalous  and  libelhus  effigies,  and  thereby  collecting  a 
crowd,  6fC.     First  count.{s) 

That  the  said  R.  C,  afterwards,  to  wit,  on,  &:c.,  and  on  divers  other 
days  and  times,  as  well  on  the  Lord's  day,  commonly  called  Sunday, 
as  on  other  days,  between  the  said,  &c.,  and  the  day  of  taking  this 
inquisition,  and  for  divers  long  spaces  of  time,  to  wit,  for  the  space 
of  ten  liours  in  each  of  the  several  days  last  aforesaid,  at,  &c.,  at  the 
windows  of  a  certain  messuage,  shop  and  premises,  of  and  belonging 
to  the  said  R.  C,  there  situate,  and  being  in  and  near  to  a  certain 
common  and  public  highway  there,  called  Fleet  street,  andi  to  the 

sustained;  for  the  fact  charsfcd  in  tiie  indictment  and  with  the  circumstances  accompany, 
ing  it,  is  indictable  by  wlioinsoever  committed.  It  is  not  necessary  to  state  in  such 
indictment  that  the  defendant  acted  in  violation  of  any  duty  imposed  on  him  by  his  pecu- 
liar condition;  for  it  is  a  misdemeanor  at  conmion  law  knowin;^ly  to'  jrive  any  person 
ifijurious  food  to  eat,  whether  the  defendant  be  excited  by  malice  or  a  desire  of  gain.  The 
ciiarjj-e  in  Treeve's  case  was,  for  wilfully,  deceitfully  and  maliciously  supplying  prisoners 
of  war  with  unwholesome  food,  not  fit  to  be  eaten  by  man.  It  was  laid  as  an  offence  at 
common  law;  and  ah  exception  was  taken  in  arrest  of  judgment,  that  it  was  not  indict- 
able; as  it  did  not  appear  that  what  was  done  was  in  breach  of  any  contract  with  the 
jiublic,  or  of  any  moral  or  civil  duty.  The  defendant  was,  in  fact,  a  contractor  with  the 
public  for  supplying-  the  prisoners  with  provisions,  but  that  was  not  stated  in  the  indict- 
ment, nor  was  it  held  necessary  to  state  it;  and  the  conviction  was  supported  upon  the 
broad  ground,  that  the  giving  of  unwholesome  victuals,  not  fit  for  man  to  eat,  whether 
from  motives  of  gain,  from  malice  or  deceit,  was  clearly  an  indictable  offence.  (2  East 
P.  C.  821). 

"  There  are  several  precedents  of  indictments  for  the  same  offence,  variously  modified, 
stated  in  2  Chit.  C.  L.  556,  on  which  convictions  have  been  had,  upon  undoubted  princi- 
ples of  law.  It  is  true,  that  a  very  ancient  statute  was  passed,  further  to  aggravate  the 
punishment  for  selling  unwholesome  provisions,  but  as  I  have  met  with  no  prosecutions 
upon  it,  the  common  law  may  be  supposed  to  have  been  weakened  by  tlie  legislature's 
fiiaking  declarations  against  offences  which  were  criminal  by  the  common  law,  when  pro- 
perly understood.  Of  this,  sBveral  remarkable  instances  arc  stated  in  Barrington  on  the 
Statutes  313.  It  seems,  upon  the  whole,  that  the  public  health,  whether  affected  through 
the  medium  of  unwiiolesome  food,  or  poisoning  the  atmosphere,  or  introdubing  infectious 
diseases,  is  anxiously  guarded  by  the  common  law.  There  ought  to  be  judgment  for  the 
state." 

Hall  J. :  "I  concur  in  opinion,  that  the  act  charged  in  the  indictment  is  an  indictable 
offence.  In  4  Bl.  162,  it  is  said,  that  it  is  an  ofTence  against  public  health,  to  sell  unwhole- 
some provisions.  From  this  it  might  be  inferred,  that  unless  the  public  were  concerned 
in  the  act,  it  was  not  a  public  offence,  as  in  the  case  of  The  King  v.  Baldock,  for  supplying 
the  prisoners  with  unwholesome  food,  he  being  a  public  contractor  for  that  purpose  (2 
Chit.  C.  h.  556),  and  the  case  of  The  King  v,  Treeve,  who  was  indicted  for  the  same 
offence  (2  East  C.  L.  821).  But  it  is  laid  down  by  both  these  writers,  that  the  person 
charged  need  not  be  a  public  contractor;  that  it  is  a  misdemeanor  at  common  law  to  give 
any  person  unwholesome  food,  not  fit  for  man  to  eat,  lucri  causa,  or  from  m;ilice  or  deceit, 
iipart  from  other  considerations  which  entered  deeply  intp  tiie  demerits  of  Baldock  and 
Treeve.  Sec  also  6  East  133,  141 ;  2  East  C.  L.  823 ;  2  Ld.  Raym.  1 17!)  ;  3  Ld.  Raym.  487, 
The  offence  is  one  tliat  common  prudence  cannot  guard  asrainst,  and  wliat  is  most  im- 
portant, the  conBcquences  cannot  be  calculated,  I  think  judgment  should  be  given  for 
the  state." 

Henderson,  J,  concurred, 

(«)  R,  r.  Carlisle,  6  C.  &  P.  636, 

The  defendant  was  convicted  and  sentenced  before  Mr,  Justice  Park,  Mr,  Baron  Bolland, 
ai5d  Sir  John  Cross,  knight. 


448  OFFEXCES  AGAINST  SOCIETY. 

dwelling  houses  and  residences  of  divers  the  hege  subjects  of  our  said 
lord  the  king,  there  inhabiting  and  residing,  unlawfully  did  publicly 
exhibit  and  expose,  and  did  cause  to  be  publicly  exhibited  and  ex- 
posed, divers,  to  wit,  three  scandalous  and  libellous  effigies  and 
iigures,  that  is  to  say,  one  effigy  and  figure  intended  to  represent  and 
representing  the  devil  with  a  pitchfork,  and  one  other  effigy  and 
figure  intended  to  represent  and  representing  a  bishop  of  the  estab- 
lished church  of  the  said  united  kingdom  ;  the  said  two  last  men- 
tioned effigies  and  figures  being  placed  together,  and  one  arm  of  the 
said  effigy  and  figure  representing  the  bishop  being  placed  within 
one  arm  of  the  said  ^ffigy  and  figure  representing  the  devil ;  and 
vmderneath  the  said  two  last  mentioned  effigies  and  figures  was  a 
certain  inscription  and  paper  writing,  in  large  letters  and  characters, 
as  follows,  that  is  to  say,  "  Spiritual  Brokers;"  and  one  other  effigy 
and  figure,  representing  and  intended  to  represent  the  person  of  a 
man  in  the  ordinary  dress  of  a  tradesman,  and  underneath  the  said 
last  mentioned  effigy  and  figure  was  a  certain  other  inscription  and 
paper  writing,  in  large  letters  and  characters,  as  follows,  that  is  to 
say,  "  Temporal  Brokers;"  and  between  the  said  two  effigies  and 
figures  in  this  count  first  mentioned,  and  the  said  effigy  arid  figure  in 
this  count  last  mentioned,  and  near  to  all  the  effigies  and  figures  in 
this  coimt  aforesaid,  was  a  certain  other  inscription  and  paper  writing, 
in  large  letters  and  characters,  as  follows,  that  is  to  say,  "Props  of 
the  Church ;"  and  also  divers  scandalous  and  libellous  placards  and 
paper  writings,  one  of  which  said  placards  and  paper  writings  was 
as  follows,  that  is  to  say,  "No  Church  Rates;"  one  other  of  which 
said  placards  and  paper  writings  was  as  follows,  that  is  to  say, 
"  Church  Robberies ;"  one  other  of  which  said  placards  and  paper 
Avritings  was  entitled  as  follows,  that  is  to  say,  "Battle  of  Church 
Rates ;"  and  one  other  of  said  placards  and  paper  writings  was  enti- 
tled as  follows,  that  is  to  say,  "Another  Seizure;"  near  to  the  said 
conmion  and  public  highway  called  Fleet  street,  and  to  the  dwelling 
houses  and  residences  aforesaid,  and  within  view  of  persons  passing 
and  repassing  in  and  along  the  said  highway,  with  intent  to  attract 
the  notice  and  attention  of  persons  passing  and  repassing  in  and 
along  the  same  highway,  to  the  effigies  and  figures,  inscriptions,  pla- 
cards and  paper  writings,  in  this  count  aforesaid,  and  thereby  on  the 
several  days  in  that  behalf  aforesaid,  and  as  well  on  the  Lord's  day, 
commonly  called  Sunday,  as  on  the  said  other  days,  at  the  parish  and 
ward  albresaid,  in  London  aforesaid,  and  within  the  jurisdiction  of 
the  said  comt,  he,  the  said  R.  C,  unlawfully  did  cause  and  jirocure 
and  occasion  divers  persons,  that  is  to  say,  forty  persons,  as  well  men 
as  women  and  children,  and  idle,  dissolute  and  disorderly  people, 
wrongfully  and  injuriously  to  assemble,  stand,  be  and  remain  in  the 
highway  aforesaid,  and  near  to  the  dwelling  houses  and  residences 
aforesaid,  for  divers  long  spaces  of  time,  to  wit,  for  the  sj)ace  of  ten 
iiours  in  each  of  the  several  days  in  that  behalf  aforesaid,  looking  at 
the  said  last  mentioned  effigies  and  figures,  and  reading  the  said  last 
mentioned  placards  and  paper  writings  so  by  him  the  said  R.  C.  ex- 
hihiicd  and  exposed  in  manner  and  with  intent  albresaid  ;  by  m(,'ans 
ol   which  said  several  premises,  in  ilus  count  aforesaid,  the  connnbn 


NUISAXCE,  440 

and  public  liighway  aforesaid,  on  the  several  days  and  times  in  that 
behalf  aforesaid,  at  the  parish  and  ward  aforesaid,  in  London  afore- 
said, and  within  tlie  jurisdiction  of  the  said  court,  was  greatly  ob- 
structed and  straitened,  so  that  the  liege  sut)jects  of  our  said  lord  the 
king,  during  the  times  in  this  count  aforesaid,  could  not  go,  return, 
pass  and  repass  in  and  along  the  said  common  and  public  highway, 
and  to  and  from  the  said  dwelling  houses  and  residences  situate  and 
there  being  near  to  the  said  messuage,  shop  and  premises  of  the  said 
R.  C,  so  freely  and  conveniently  as  they  had  been  used  and  accus- 
tomed to  do, "and  of  right  ought  to  liave  done,  and  still  of  right  ought 
to  do,  to  the  great  damage  and  common  nuisajice  of  all  the  liege  sub- 
jects of  our  said  lord  the  king,  in  and  along  the  said  common  and 
public  highway  called  Fleet  street,  and  to  and  from  the  dwelling 
houses  and  residences  aforesaid,  going,  returning,  passing  and  repass- 
ing, and  near  to  the  aforesaid  messuage,  shop  and  premises  of  the 
said  R.  C,  dwelling  and  residing,  to  the  evil  example,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count. 

That  the  said  U.  C,  afterwards,  to  wit,  on  &c.,  and  on  the  said 
several  other  days  in  that  behalf  bereinbelbre  mentioned,  with  force 
and  arms,  at  the  parish  and  ward  aforesaid,  in  London  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  unlawfully  and  in- 
juriously did  put,  place  and  exhibit  and  expose,  and  cause  and.  pro- 
cm-e  to  be  put,  placed,  exhibited  and  exposed,  divers,  to  wit,  three 
other  effigies  and  figures,  that  is  to  say,  one  effigy  and  figure  intended 
to  represent  and  representing  the  devil  with  a  pitchfork,  one  other  effigy 
and  figure  intended  to  represent  and  representing  a  bishop  of  the 
established  church  of  the  said  united  kingdom,  and  one  other  effigy 
and  figure  at  the  windows  and  on  the  outside  of  a  certain  messuage 
and  shop  there  situate  and  being  adjacent  to  a  certain  other  connnon 
and  public  highway  there  called  Fleet  street,  and  to  the  dwelling 
houses  and  residences  of  divers  liege  subjects  of  our  said  lord  the 
king,  situate  there,  and  did  unlawfully  and  injuriously  keep  and 
continue  and  cause  to  be  kept  and  continued,  the  same  effigies  and 
figures,  so  there  put,  placed,  exhibited  and  exposed,  as  last  aforesaid, 
for  divers  long  spaces  of  time,  to  wit,  for  the  space  of  ten  hours  in 
each  of  the  several  days  in  that  behalf  aforesaid,  he  the  said  R.  C,  at 
the  several  times  he  so  put,  placed  and  exhibited,  and  exposed  the 
said  effigies  and  figures  in  this  count  aforesaid,  and  continued  the 
same  so  put,  placed,  exhibited  and  exposed  as  aforesaid,  well  know- 
ing that  the  said  highway  would  thereby  be  obstructed  in  the  manner 
in  this  count  hereinafter  mentioned ;  and  that  the  said  R.  C,  on  the 
several  days  in  that  behalf  aforesaid,  and  for  divers  long  spaces  of 
time,  to  wit,  for  the  space  of  ten  hours  in  each  of  the  said  several 
days,  and  as  well  on  the  Lord's  day,  commonly  called  Sunday,  as  on 
the  said  other  days,  at  the  parish  and  ward  aforesaid,  in  London 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  by  means  of 
the  putting,  placing,  exhibiting  and  exposing  the  said  last  mentioned 
effigies  and  figures,  and  keeping  and  continuing  the  same  so  put, 
placed,  exhibited  and  exposed  at  the  windows,  and  the  outside  of 
the  said  messuage  and  shop,  as  in  this  count  aforesaid,  willullv.  un- 

38* 


450  OFFENCES  A(;AINST  SOCIETV. 

lawfully  and  injuriously  did  cause  and  procure  and  occasion  divers 
j)ersons,  as  well  men  as  women  and  children,  and  idle,  dissolute  and 
disorderly  people,  that  is  to  say,  forty  persons,  to  assemble,  stand  and 
be  and  remain  in  the  said  last  mentioned  highway,  whereby  the 
same  highway,  on  the  several  days  and  times  in  that  behalf  aforesaid, 
and  as  well  on  the  Lord's  days,  commonly  called  Sundays,  as  on 
other  days,  was  greatly  obstructed  and  straitened,  so  that  the  liege 
subjects  of  our  said  lord  the  king,  during  the  said  times,  could  not  go, 
return,  pass  and  repass  in  and  along  the  same  highway,  so  freely 
and  conveniently  as  they  had  been  used  and  accustom'ed  to  do,  and 
of  right  ought  to  have  done,  and  still  of  right  ought  to  do,  to  the 
great  damage  and  common  nuisance  of  all  the  liege  subjects  of  our 
said  lord  the  king,  in  and  along  the  same  highway  going,  returning, 
passing  and  repassing  and  there  inhabiting  and  residing,  and  against, 
&c.     {Conclude  as  in  book  1,  chap.  3), 

Keeping  a  house  in  uhich  men  and  icomen  exhibit  themselves  nuked, 
<^c.,  as  "  model  artists.''' {t) 

That  E.  F.  late  of,  &c.,  on,  &c.,  and  on  divers  other  days  and  times 
between  that  day  and  the  day  of  the  taking  of  this  inquisition  at,  &c., 
did  keep  and  maintain,  and  yet  doth  keep  and  maintain  a  certain 
common,  ill-governed  and  disorderly  house,'and  in  his  said  house  for 
liis  own  lucre  and  gain  certain  persons,  as  well  men  as  women,  of 
evil  name  and  fame  and  of  dishonest  conversation,  did  permit  to  fre- 
quent and  come  together,  and  the  said  men  and  women  then  and  on 
the  said  other  days  and  times  there  unlawfully  and  v/ilfully  did  cause 
and  procure  in  his  said  house,  publicly  to  expose  and  exhibit  them- 
selves for  the  lucre  and  gain  of  him  the  said  E.  F.,  to  divers  persons 
in  his  said  house  assembled,  in  various  scandalous,  lewd,  lascivious, 
obscene  and  indecent  groupings,  attitudes,  postures  and  positions,  to 
the  manifest  corruption  of  the  morals  as  well  as  of  youth  as  of  other 
good  and  worthy  citizens  of  the  State  of  New  York,  in  open  violation 
of  decency  and  good  order,  to  the  great  damage  and  common  nui- 
sance, &c.,  to  the  evil  example,  &c.,  and  against,  &c.  {Conclude  as 
in  book  1,  chap.  3). 

Second  count. 

That  the  said  E.  F.,  afterwards,  to  wit,  &c.,  and  on  divers  other 
days  and  times  between  that  day  and  the  day  of  the  taking  of  this 
inquisition,  at,  &.C.,  unlawfully  did  publicly  exhibit  and  show,  and 
cause  and  procure  to  be  puljlicly  exhibited  and  shown  for  money, 
certain  persons,  men  as  well  as  women,  whose  names  are  to  the  jurors 
aforesaid  unknown,  in  various  impudent,  lascivious,  lewd,  wicked^ 
scandalous  and  obscene  groupings,  attittides,  positions  and  postures, 
to  the  manifest  corruption  of  the  morals  as  well  of  youth  as  of  other 
good  and  worthy  citizens  of  the  State  of  New  York,  in  open  violation 
of  decency  and  good  order,  to  the  groat  damage  and  common  nuisance. 


(Ij  Tliis  form  was  drawn  in  New  York,  in  Marcli,  1848,  for  the  purpose  of  lericiiinir 
the  "Model  Artists."  A  conviction  uuider  a  suuilar  indictment,  was  siistaiiied  in  rhiludcl- 
phia,  in  June,  iblB. 


NUISANCE.  451 

&c.,  to  the  evil  example,  &c.,  and  against,  etc.  {Conclude  as  in  book 
1,  chap.  3). 

Third  count. 

That  the  said  E.  F.,  afterwards,  to  wit,  on  the  day  and  year  last 
aforesaid,  at  the  ward,  city  and  county  aforesaid,  was  the  keeper  of 
a  certain  ])ublic  place  of  amusement  known  and  designated  as  the 
Chatham  'I'heatre,  at  which  public  place  of  amusement  the  said  E. 
F.  did  exhibit  and  cause  and  procure  to  be  exhibited  for  money,  cer- 
tain persons,  men  as  well  a,s  women,  in  various  lascivious,  wicked, 
impudent,  lewd,  obscene  and  indecent  groupings,  attitudes,  postures 
and  positions,  to  the  manifest  corruption  of  the  morals  as  well  of 
youth  as  of  other  good  and  worthy  citizens  of  the  State  of  New  York, 
in  open  violation  of  decency  and  good  order,  to  the  great  damage  and 
common  nuisance,  &c.,  to  the  evil  example,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Fourth  count. 

That  the  said  F.,  afterwards,  to  wit,  on  the  day  and  year  last  afore- 
said, at  the  ward,  city  and  county  aforesaid,  and  on  divers  other  days 
and  times  between  that  day  and  the  day  of  the  taking  of  this  inquisi- 
tion, at  the  ward,  city  and  county  aforesaid,  with  force  and  arms 
wickedly  and  unlawfully  did  exhibit  and  show  for  money  to  divers 
persons  whose  names  are  to  the  jurors  aforesaid  unknown,  a  certain 
lewd,  wicked,  scandalous,  infamous  and  obscene  representation,  ex- 
hibiting certain  living  men  and  women,  whose  names  are  to  the  jurors 
'aforesaid  also  unknown,  in  divers  lewd,  lascivious,  wicked,  indecent 
and  obscene  groupings,  attitudes,  postures  and  positions,  to  the  mani- 
fest corrujition  of  morals,  in  open  violation  of  decency  and  good 
order,  to  the  evil  example,  &.c.,  and  against,  &:c.  [Conclude  as  in 
book  1,  chap.  3). 

Bathing  publicly  near  ■public  loays  and  habitations. (u) 

That  H.  0.  G.  late  of  unlawfully,  deliberately  and  wilfully 

did  expose  and  exhibit  himself  naked,  near  to  and  in  front  of  divers 
houses  of  the  good  people  of  tiie  said  state,  situate  at,  &c.,  aforesaid, 
and  also  near  to  a  certain  public  and  common  ihghway  there,  and 
also  in  the  presence  of  the  good  people  of  the  said  state,  both  male 
and  female,  with  intent  to  vitiate  and  corrupt  the  morals  of  the  said 
people  of  the, state,  to  the  common  nuisance,  &c.,  and  against,  &c.{v) 
{Conclude  as  in  book  1,  chap.  3). 

That  the  said  H,  0.  G.  on,  &c.,  at,  &c.,  unlawfully,  deliberately  and 
wilfully  did  expose  himself  naked  to  divers  of  the  good  people  of  the 
state,  against,  &.c.     {Conclude  as  in  book  1,  chap.  3). 


(w)  Dickinson's  Q.  S.  6lh  cd.  3n3. 

(«)  Undressing  on  a  beach  and  batlirng-  in  tlie  sea,  so  near  inhabited  houses  as  to  I)e 
distinctly  visible  from  thcni,  is  an  offence,  thoug-h  tiie  houses  are  recently  erected,  and  the 
bathing  at  that  i)lacc  was  pievionslv  general;  R.  r.  Crunden,  2  Canipb,  8!l ;  1  Sid.  6S;  I 
Kcb.  620 ;  2  Slran.  7^6 ;  State  v.  Millard,  18  Verm.  574 ;  Dickinson's  Q.  S.  Cth  cd.  3U4 ;  2 
Cliit.  C.  L.  41. 


452  OFFEiVCES  AGAINST  SOCIETY. 

Public  exposure  of  naked  person. (ic) 

That  J.  S.,  late,  &c.,  being  a  scandalous  and  evil  disposed  person, 
and  devising,  contriving  and  intending  the  morals  of  divers  good  peo- 
ple of  the  said  state  to  debauch  and  corrupt,  on,  &c.,  at,  &c,,  on  a 
certain  public  and  common  highway  there  situate,  in  the  presence  of 
divers  good  people  of  the  said  state  then  and  there  being,  and  within 
sight  and  view  of  divers  other  liege  subjects  through  and  on  the  said 
highway  then  and  there  passing  and  repassing,  unlawfully,  wickedly 
and  scandalously  did  expose  to  the  view  of  the  said  persons  present 
and  so  passing  and  repassing  as  aforesaid,  the  body  and  person  of 
him  the  said  J.  S.  naked  and  uncovered  for  a  long  space  of  time,  to 
wit,  for  the  space  of  one  hour,  to  the  great  scandal,  &c. 

Exposing  the  private  parts  in  an  indecent  posture.{x) 

That  H.  0.  G.,  late  of,  &c.,  and  intending  as  much  as  in  him  lay  to 
vitiate  and  corrupt  the  morals  of  the  good  people  of  the  said  state, 
and  to  stir  up  and  excite  in  their  minds  filthy,  lewd  and  unchaste 
desires  and  inclinations,  on,  &c.,  at,&c.,  unlawfully,  wickedly,  delibe- 
rately and  wilfully  did  expose  and  exhibit  his  private  parts,  in  an 
indecent  posture,  situation  and  practice,  to  the  good  people,  both  male 
and  female,  of  the  said  state,  with  intent  to  vitiate  and  corrupt  the 
morals  of  the  good  people,  and  to  stir  up  and  excite  in  their  minds 
filthy,  lewd  and  unchaste  desires  and  inclinations,  against,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

Same,  under  s.  8,  c.  444  Vermont  Rev.  Stats.     First  count,  exposure  to 
divers  persons,  ^'C.[ij) 

That  A.  B.,  on,  &c.,  did  expose  and  exhibit  his  private  parts,  in  a 
most  indecent  situation  and  posture,  to  divers  persons,  with  intent  to 
excite  in  their  minds  lewd  and  unchaste  desires  and  inclinations,  &c. 

(m))  Tliis  form  is  given  by  Mr.  Arnlibold  (C  P.  5tli  Am.  cd.  774),  vvlio  cites  the  foUow. 
inor  autliorities;  R.  v.  Sir  Charles  Sedlcy,  10  St.  Tr.  Ap.  !)3 ;  I  Sid.  168;  1  Keb.  63:) ;  and 
sec  R.  V.  Galiaro,  1  Sess.  Ca.  231  ;  Fi.  v.  Crunden,  2  Canipb.  89 ;  1  B.  &  Ad.  933;  Reg.  v. 
Powell,  3  Q.  B.  IHO ;  2  Gale  &  D.  518. 

(x)   Uickiiison's  Q.  S.  (Jth  ed.  394. 

When  an  indictment  contained  two  accounts,  two  instances  of  exposure  were  allowed  to 
he  given  in  evidence,  viz.  one  on  each  of  two  sei)arate  days,  or  two  sejjaratc  instances  on 
the  same  day  ;  for,  as  the  day  laid  in,  the  first  count  was  immaterial,  exposure  on  another 
day  may  be  proved  on  tliat  count.  Then  as  the  second  coutit  charged  the  oflencc  aa  done 
on  the  "day  and  year  aforesaid,"  a  second  exposure,  viz.  the  day  laid  in  the  first  count 
may  be  shown  ;  and  if  ditferent  days  are  laid  in  diflcrent  counts,  any  number  of  acts  of 
exposure  may  be  sliown ;  Rowbattcl's  case,  1  Ijcvv.  V,.  C.  R.  83. 

iy)  Slate  v.  Millard,  18  Verm.  57.').     Tlie  opinion  of  the  court  was  delivered  by 

Williams  ('.  J.:  "  In  this  case  the  respondent  excepted  to  the  charge  of  the  court,  and 
also  to  the^ir  decision,  in  overruling  the  motion  in  arrest;  on  botii  which  points  we  think 
the  decision  was  correct. 

"  'Die  statute — Rev.  Stat.  444,  s.  8 — provides,  that  if  any  man  or  woman,  married  or  un- 
married, shall  be  guilty  of  open  and  gross  lewdness  ;md  lascivious  behaviour,  «fcc.,  he  shall 
be  imprisoned  in  the  common  gaol  not  more  than  two  years,  or  fined  not  exc(;(;diiig'  thrc.'C 
hundred  dollars.  No  particular  definition  is  given,  l>y  the  statute,  of  what  constitutes  this 
crime.  'J'he  indelicacy  of  the  subject  fjrhids  it,  and  does  not  require  of  the  court  to  state 
what  particular  conduct  will  Cf)nstitule  the  oH'iicc,  '{"he  common  sense  of  community,  as 
well  as  tiie  sense  of  decency,  propriety  and  morality,  wiiich  most  people  entertain,  is  suf- 


NUISAXCE.  453 

Second  count.     Exposure  in  the  presence  of  one  Polly  P. 

That  the  said  A.  B.  on,  &c.,  did  commit  open  and  gross  lewdness 
and  lascivious  behaviour,  and  did  then  and  there  lewdly  and  lasci- 
viously expose  his  private  parts  in  a  most  indecent  posture  and  situa- 
tion, in  the  presence  of  one  P.  P.,  with  intent  to  excite  in  her  mind, 
&c.,  {as  in  las  I  count). 

Third  count.  Exposure  in  the  presence  of  Polly  P.  and  divers  other 
persons  to  the  jurors  uiihnou:n. 

That  the  respondent,  said  A.  B.,  &,c.,  intendijig  to  corrupt  the  man- 
ners and  morals  of  the  people,  did  commit  open  and  gross  lewdness 
and  lascivious  behavioiu',  and  did  then  and  there  lewdly  and  lasci- 
viously expose  and  exhibit  his  private  parts  in  the  presence  of  one  P.P., 
and  in  the  presence  of  divers  other  persons  to  the  jurors  unknown,  <tc. 

A  not) lev  form  for  tlie  same  in  Korth  Carolina,  there  being  no  allegation 
of  the  presence  of  looker s-on.(z) 

That  S.  R.,  late  of,  &c.,  on,  &c.,  at,  &:c.,  being  an  evil  disposed  per- 
son, and  contriving  and  intending  to  debauch  and  corrupt  the  morals 

ficicnt  to  apply  the  statute  to  each  particular  case,  and  point  out  what  particular  conduct 
is  rendered  ciiniinal  by  it. 

"  That  the  conduct  of  tlie  respondent,  in  this  case,  was  lewd  and  lascivious,  is  beyond 
question.  A  public  exposure  of  himself  to  a  female,  in  the  manner  this  respondent  did, 
with  a  view  to  excite  unchaste  fecling-s  and  passions  in  her  and  to  induce  her  to  yield  to 
his  wislies,  is  lewd,  and  is  gross  lewdness,  calculated  to  outrage  the  feeling-s  of  the  person 
to  whom  he  thus  exposed  himself,  and  to  show  that  all  sense  of  decency,  ciiastity  or  pro- 
priety of  conduct,  was  wanting  in  him,  and  that  he  was  a  proper  subject  for  tlie  animad- 
version of  criminal  jurisprudence. 

"  That  this  lewdness  was  open — which  under  this  statute  must  be  considered  as  undis- 
guised, not  concealed,  and  opposite  to  private,  concealed  and  unseen — is  also  evident. 
There  was  no  desire  or  wish  for  concealment ;  and,  so  far  as  the  female  was  in  his  view, 
he  exposed  himself  to  her  with  the  intent  and  design  that  she  sliould  see  him  thus  exposed. 
The  crime  cannot  be  made  to  depend  on  the  number  of  persons  to  whom  a  person  thus 
exposes  himself,  wlicthcr  one  or  many.  Indeed,  the  offence  in  this  case  is  more  glaring 
and  gross  than  in  the  case  of  Sir  Charles  Sedley,  1  Sid.  168;  1  Keb.  ()20,  or  of  the  man 
who  batlied  in  a  public  |)lace;  Rex  v.  Crundcn,  2  Campb.  89.  In  tliose  cases  there  was  a 
disregard  of  decency,  witliout  any  design  to  outrage  the  feelings  of  any  individuals,  or  to 
excite  any  improper  desires  or  feelings  in  them.  In  the  case  before  us,  such  motives  evi- 
dently actuated  the  respondent. 

"  I  am  not  prepared  to  say,  that  tlie  conduct  of  the  respondent  would  not  have  been  in- 
dictable at  common  law,  notwithstanding  the  intimation  to  the  contrary  in  the  case  of 
Fowler  v.  The  State,  5  Day  81.  There  is  a  precedent  of  an  indictment  against  one  Ben- 
nett, in  2  Chit.  41,  on  wliicli  he  was  convicted,  wiiich  would  have  been  sustained  by  the 
same  evidence  produced  against  this  respondent. 

"Of  the  soundness  of  tiie  decision  in  Coinmonweallii  v.  Catlin,  1  Mass.  8,  we  have  no- 
thing to  say,  and  only  remark  that,  in  that  case,  the  lewdness  was  designed  to  be  private, 
»nd  it  was  rather  accidental  that  the  offenders  v.ere  discovered;  and  in  this  particular  tlie 
case  is  essentially  difl'erent  from  the  one  before  us. 

"No  other  objections  have  been  urged  in  the  argument.  The  indictment,  in  the  second 
nnd  third  counts,  has  followed  the  words  of  the  statute.  Judgment  must  be  rendered  on 
the  verdict,  and  the  respondent  sentenced." 

{z)  State  V.  IJoper,  I  Dev,  it  But.  208. 

Gaston  J.,  after  stating  the  case,  proceeded  :  "  We  consider  it  a  clear  proposition,  tiiat 
every  act  which  openly  outrages  decency,  and  tends  to  the  corruption  of  the  public  morals, 
is  a  misdemeanor  at  common  law.  A  public  exposure  of  the  naked  person,  is  am.ong  the 
most  offensive  of  those  outrages  on  decency  and  public  morality.  It  is  not  necessary  to 
the  constitution  of  the  criminal  act,  that  the  disgusting  exhibition  should  have  been  actually 
seen  by  the  public;  it  is  enough  if  the  circumslanecs  under  which  it  was  obtruded,  were 
such  as  to  render  it  probable  that  it  would  be  publicly  seen  ;  tliercb}'  endangeriiisr  n  sfiock 
to  HKidest  feeliiiu,  manifesting  a  eonlenipl  for  the  laws  ol'  deeeiicv.  In  the  description  of 
every  indictable  otieuce,  it  is  always  advisable  that  the  charge  should  be  made  to  conform 


454:  OFfEXCES  AGAINST  SOCIETY. 

of  the  citizens  of  said  county,  on  a  certain  public  highway  In  said 
county,  did  indecently  and  scandalously  expose  to  public  view  the 
private  parts  of  him  the  said  R.,  to  the  evil  and  pernicious  example, 
&c.,  and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Lewdness  and  lascivious  cohabitation  in  Massachusetts.   First  count,  las- 
civious behaviour  by  lying  in  bed  openly  with  a  ivoman. 

That  A.  B.  of,  &c.,  on,  &c.,  and  from  that  day  to  the  day  of 

being  then  and  there  a  married  man  (and  having  a  lawful  wife 
alive),  did  commit  open,  gross  lewdness  and  lascivious  behaviour,  and 
did  then  and  there  lewdly  and  lasciviously  lie  on  a  bed  with  one  C.  F. 
(a  singlewoman),  she  the  said  C.  F.Jhen  and  there  not  being  the  wife 
of  the  said  A.  B.,  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count.  Lascivious  behaviour,  by  putting  the  arms  openly 
about  a  woman,  ^^c. 

That  said  A.  B.  at,  &.C.,  on  the  day  and  year  aforesaid,  being  then 
and  there  a  married  man  and  having  a  lawful  wife  alive,  was  guilty 
of  open,  gross  lewdness  and  lascivious  behaviour,  by  openly,  lewdly, 
grossly  and  lasciviously  putting  his  arms  about  the  said  C.  F.,  (she 
the  said  C.  F.  then  and  there  being  a  singlewoman,  and  not  being  the 
wife  of  the  said  A.  B.),  against,  &c.(a)  {Conclude  as  in  book  1, 
chap.  3). 

to  approved  precedents.  A  departure  from  them  is  viewed  witli  suspicion.  Yet  where 
there  are  no  precise  teclinical  expressions  and  terms  of  art  required,  so  appropriated  by  the 
law  to  the  description  of  an  offence  as  not  to  admit  a  substitute  for  them,  it  is  sufficient 
that  the  indictment  charges  in  intelligible  language,  with  distinctness  and  certainty,  all 
the  substantial  circumstances  vvhicb  constitute  the  offence.  In  2  Ciiit.  C.  L.  41,  we  have 
a  precedent  of  the  indictment  which  was  used  in  tlie  case  of  The  King  v.  Crunden.  It 
consists  of  two  counts.  The  first  charges  that  he  exposed  himself  naked,  and  in  an  inde- 
cent posture  near  to  and  in  front  of  divers  houses,  and  also  near  to  a  certain  public  high- 
way,  and  also  in  the  presence  of  divers  of  king's  subjects:  tlie  second  charges,  that  he 
exposed  himself  naked  to  divers  of  his  majesty's  subjects.  In  2  (Campbell's  Rep.  p.  89, 
wc  have  a  report  of  the  case.  The  defendant  was  convicted  on  evidence  that  he  bathed  in 
the  .sea,  dressing  and  undressing  on  the  beach,  opposite  to  the  East  Cliff  at  Brighton,  on 
which  cliff  there  was  a  row  of  inhabited  houses,  from  the  windows  of  which  he  might  be 
distinctly  seen,  as  he  was  undressed  and  swam  in  the  sea.  The  allegation,  that  this  inde- 
cent exhibition  was  made  in  the  presence  of  divers  persons,  was  satisfied  by  proof  that  it 
took  place  in  tiicir  vicinity,  and  so  that  it  might  have  been  seen.  The  allegation  means 
no  more,  and  any  other  allegation  which  distinctly  and  especially  avers  as  much,  will  as 
effectually  answer  to  describe  the  offence.  The  averments  in  this  indictment,  that  on  a 
certain  public  highway  the  defendant  did  indecently  and  scandalously  expose  to  public 
view,  can  mean  nothing  less  than  that  the  indecent  exposition  was  so  made  that  it  might 
have  been  seen  by  numbers.  The  necessary  constituents  of  tlie  crime  are  therefore  stated, 
and  there  was  no  error  in  overruling  the  motion  in  arrest."  To  the  same  effect  is  Fowler 
V.  Slate,  .5  Day  81  ;  State  v.  Grisham,  2  Yerg.  589.     See  p.  45!);  see  also  next  note. 

(a)  'I'hcsc  counts  were  framed  under  the  stat.  of  1784,  c.  40,  and  were  brought  before 
the  Suj)reme  Court  in  Com.  v.  C;atlin,  1  Alass.  !).  Nothing  but  secret  lewdness  was  proved 
on  trial  (the  [)rinci[)al  witness  jiaving  jjccped  through  the  window),  and  as  the  jury  were 
<iirected  to  acpiit,  the  indictment  was  not  tested.  The  averments  in  brackets  arc  not  in 
Ihc  original,  though  it  would  be  safer  to  insert  them.  The  offence  charged  in  the  first 
count  is  clearly  a  misdemeanor  at  common  hiw  (sec  Wh.  C.  L.  507),  though  it  is  ques- 
tionable whether  to  indict  it  as  such,  it  should  not  be  charged  as  a  common  nuisance; 
State  V.  \V;ili(;r,  .3  Murph.229.  One  instance  of  carnal  connexion,  it  is  ruled,  is  not  enough 
under  the  statute;  there  must  be  a  continuance  of  cohabilation,  of  a  public  nature,  tending 
to  corrupt  public  morals;  Com.  «.  CCalef,  10  Mass.  153.  Jiut  I  appreliend  that  "putting  his 
arms  about"  an  utnnarried  woman  in  public,  has  now  become  too  priuci[)al  a  part  of  the 
dances  of  Ihc  nation — said  by  Mr.  Bcntham  to  be  part  of  its  common  law — to  be  dealt  witli 
by  indictment. 


NUISANCE.  455 

Lascivious  cohahilation  at  common  law.{h) 

That  A.  B.,  yeoman,  and  C.  D,,  spinster,  being  scandalous  and 
evil  disposed  persons,  on,  &c.,  at,  &c.,  devising  and  intending  the 

(ft)  State  V.  Grisham,  2  Yerg.  589.  "  It  is  insisted  for  tlie  plaintiff  in  error,"  said  the 
court,  "  that  to  support  tlie  criminal  allegations  in  tlie  presentment,  which  ills  argued, 
amount  to  open  and  notorious  lewdness,  the  acts  stated  must  be  shown  to  have  been  com- 
mitted in  public,  such  as  in  the  streets  of  a  town,  or  elsewhere  exposed  to  the  view  of 
divers  persons.  And  tlie  case  of  Com,  c.  Catlin  (1  Mass.  Rep.  b),  was  cited.  That  was 
an  indictment  brought  on  a  statute  of  the  State  of  Massachusetts,  the  provisions  of  whicii 
are  not  staled  in  the  report,  and  the  statute  itself  has  not  been  seen.  The  report  of  the 
case  in  the  book  is,  that  on  an  indictment  under  the  statute  for  open  and  gross  lewdness 
and  lascivious  behaviour,  evidence  of  lewdness,  or  such  behaviour  in  secret,  will  not  sup- 
port the  indictment.  This  case,  therefore,  wholly  dependent  upon  the  particular  provi- 
sions of  a  statute,  can  have  but  little,  if  any  application  to  the  present  case,  which  is  a 
presentment  at  the  common  law.  It  will  not,  therefore,  be  remarked  upon  or  further 
noticed. 

"The  common  law  is  the  guardian  of  the  morals  of  the  people,  and  their  protection 
against  offences  notoriously  against  public  decency  and  good  manners;  and  Blackstone 
says,  that  open  and  notorious  lewdne.-s,  either  by  frequenting  houses  of  ill-fame,  which  is 
an  indictable  offence,  or  by  some  grossly  scandalous  and  public  indecency,  is  cognizable 
by  the  temporal  courts.  At  one  time  in  England,  the  superintending  care  and  concern  of 
'the  law  for  the  advancement  of  public  morality,  was  carried  to  so  great  an  extent,  thiit 
incest  and  adultery  were  made  capital  offences,  and  the  repeated  act  of  keeping  a  brothel, 
or  committing  fornication,  were  (upon  a  second  conviction),  made  felony  without  the  bene- 
fit of  the  clergy.  This  statute  was  made  during  the.  commonwealth,  when  the  ruling 
powers,  says  Blackstone,  found  it  to  their  interest  to  put  on  the  semblance  of  very  extra- 
ordinary strictness  and  purity  of  morals;  but  it  was  not  thought  proper  at  the  restoration 
to  revive  this  statute  and  renew  it,  being  of  such  unfashionable  rigour;  since  which  time 
these  offences  have  been  left  to  the  feeble  coercion  of  the  s]jirilual,  and  the  temporal  courts 
take  no  cognizance  of  the  crime  of  adultery,  otherwise  than  as  a  private  injury;  see  4  Bla. 
Com.  64,  (55. 

"This  is  the  substance  of  Judge  Blackstone's  review  of  the  law  of  England  upon  the  of- 
fences of  adultery  and  fornication,  and  the  other  offences  noticed;  upon  which  it  appears 
that  even  in  England  at  this  day,  the  case  made  by  this  record  is  the  proper  subject  of  an 
indictment,  that  is,  a  grossly  scandalous  and  public  indecency,  fjr  which  the  punishment 
is  by  fine  and  imprisonment.  When  Judge  Blackstone  says,  that  the  crime  of  adultery  is 
not  taken  into  cognizance  by  the  temporal  courts,  this  is  to  be  understood  of  secret  and 
private  adultery;  tor  if  open  and  notorious,  it  comes  within  liis  description  of  a  grossly 
scandulous  and  public  indecency. 

"  But  let  it  be  understood  that  the  temporal  courts  in  England  have  no  cognizance  of 
the  crime  of  adultery  or  fornication,  when  secret  and  private  and  confined  to  single  in- 
stances, yet  tliey  are  not  thereby  legalized  or  rendered  dispunishable  as  not  being  offences; 
they  continue  offences  there  still,  liut  their  cognizance  is  transferred  and  assigned  to  the 
spiritual  court,  who  punish  according  to  the  rules  of  the  canon  law.  It  cannot  follow- 
as  a  consequence,  that  an  offence  which  is  common  to  both  the  law  of  England  and  this 
state,  and  is  animadverted  upon  by  the  law  of  England,  and  punished  by  the  spiritual 
court  there,  shall  escape  like  animadversion  of  the  law  and  punishment  here,  because  we 
have  not  a  spiritual  court;  but  it  rather  fiillows  from  analogy  that  our  county  court  of 
pleas  and  quarter  sessions  have  the  jurisdiction  in  lliese  matters,  as  we  find  that  matters, 
the  proper  tribunal  of  which  was  the  spiritual  court  in  England,  are  in  this  state,  when  not 
repugnant  to  our  constitution  and  form  of  government,  assigned  to  the  county  courts,  as 
the  probate  of  wills  and  testaments,  the  granting  of  letters  of  administration,  &c. 

"  But  in  addition  to  analogy,  we  have  the  express  authority  of  the  common  law,  as  de- 
clared by  the  judges  in  the  courts  of  justice,  who,  as  Blackstone  observes,  are  the  living 
oracles  and  depositories  of  the  law  (see  1  Bl.  Com.  G8,  fi9,) ;  that  all  offences  against  good 
morals  are  cognizable  and  punishable  in  the  temporal  courts,  that  are  not  particularly 
assigned  to  the  spiritual  court.  Thus,  in  the  case  of  The  King  v.  Sir  Francis  Blake  De- 
laval  (Burr.  Rep.  1434),  Ld.  Mansfield  says:  '  It  is  true  that  many  offences  of  the  incon- 
tinent kind,  fall  properly  under  the  jurisdiction  of  the  ecclesiastical  court,  and  are  appro- 
priated to  it;  but  if  you  except  those  appropriated  cases,  this  court  is  the  cuslos  morum, 
(the  guardian  of  the  morals  of  the  people),  and  has  the  superintendency  of  offences  con/ra 


456  OFFENCES  AGAIXST  SOCIETY. 

morals  of  the  citizens  of  the  said  state  to  debauch  and  corrupt,  on, 
&c.,  and  on  divers  otlier  days  and  nights  between  that  day  and  the 
day  of  taking  this  inquisition,  and  for  aU  the  time  aforesaid,  in  the 
county  aforesaid,  in  the  presence  and  view  of  divers  good  citizens, 
and  in  the  face  of  the  country,  unlawfully,  wilfully,  wickedly  and 
scandalously  did  then  and  there  live,  cohabit  and  use  together  as  man 
and  wile,  in  lewd  acts  of  fornication  and  adultery,  openly,  notoriously 
and  publicly,  they  not  being  married,  to  the  great  scandal  of  the  said 
good  and  worthy  citizens  of  the  said  state,  to  the  manifest  corruption 
of  their  and  the  public  morals,  in  contempt  of  the  said  state  and  the 
laws  of  the  land,  to  the  evil  example,  &c.,  and  against,  &c.  [Con- 
clude as  in  book  1,  chap.  3). 

Lewdness,  t^-c,   bi/  a  man  and  icoman  unlaicfuIUj  cohabiting  and  Iiin?ig 
together. {c) 

That  on,  &c.,  and  upon  divers  other  days  between  that  day  and 
tlie  day  of  the  filing  of  the  indictment,  E.  C.  of  the  County  of  Sevier, 
labourer,  and  B.  B.  of  the  same  county,  spinster,  being  persons  of 
evil  disposition,  and  designing  to  corrupt  the  morals  of  the  people  of 
the  said  state,  unlawfully,  openly  and  publicly  did  live,  dwell  and 
cohabit  together  in  lewdness  and  adultery,  in  the  County  of  Sevier, 
they  being  unmarried  to  and  with  each  other,  &c. 


bonos  mores''  (aj^ainst  good  manners') ;  and  upon  this  g-'round  he  adds,  '  both  Sir  Charles 
Sediey  and  Carl,  wlio  hud  been  guilty  of  offences  against  good  manners,  were  prosecuted 
here.'  Thus  we  find  tlie  common  law  (independent  of  any  statutes),  is  the  guardian  of 
the  morals  of  the  people,  takes  cognizance  of  offences  against  good  manners,  and  this 
cognizance  belongs  to  the  temporal  courts  in  England,  in  all  those  cases  where  there  is  not 
an  appropriation  of  them  to  the  spiritual  court. 

"  The  result  of  this  view  of  the  law  is,\liat  acts  or  conduct  notoriously  against  public 
decency  and  good  manners,  constitute  an  offence  at  common  law,  cognizable  by  the  tem- 
poral courts,  even  in  England,  as  in  the  case  above  cited,  of  the  King  v.  Delavai,  which 
was  for  notoriously  living  witli  a  kept  mistress,  and  in  the  cases  of  Sir  t'iiurlcs  Sediey  and 
Curl,  above  mentioned,  who  had  been  guilty  of  offences  against  good  maimers.  Now, 
what  is  the  gist  of  the  above  prosecutious  ?  It  is  this,  that  the  act  or  acts,  or  particular 
conduct  charged,  lie  notorious  and  against  good'  manners,  not  that  they  should  have  been 
committed  in  tlie  public  str^'^''-  elsewhere  exposed  to  the  view  of  divers  spectators. 
Such  an  exhibition   as  ti''  pessary  to  satisfy  the  term   notorious,  and  portray  its 

-tharacter  and  import.  ion  of  the  term   notorious,  or  notoriously,  in  tlie  con- 

.stitution  of  an  offence  of  ti.v.  c  spoken  of,  is  sufficiently  answered  if  the  act   is  done 

in  such  a  manner,  or  under  su-.i  circumstances,  as  necessarily  to  become  public,  or  gene- 
rally known  in  the  ncighbonrliood  ;  as  in  tlie  case  before  Ld.  Hardvvicke,  where  "it  appeared 
in  a  cause  in  the  f'ourt  of  Chancery,  that  a  man  had  formally  assigned  his  wife  over  to 
anotiier  man,  Ld.  Hardwicko  directed  a  prosecution  for  that  transaction,  as  being  noto- 
riously against  public  decency  and  good  morals. 

"  Thirdly,  it  is  objected  that  there  is  error  in  the  charge  of  the  court.  As  to  this,  it  need 
only  be  observed,  that  if  there  is  any  error  in  the  charge,  it  is  in  favour  of  the  plaintiffs  in 
error,  in  rctiuiring  circumstances  not  necessary  to  be  shown  in  the  |)roof  in  the  present 
ease,  for  the  purpose  of  supporting  the  prosecution,  as  presenting  themselves  at  i)ublic 
worship,"  &.C. 

(c)  State  K.  ('agle,  2  Humph.  414. 

In  this  case  the  judgment  was  arrested  by  the  Circuit  Court,  upon  the  ground  that  the 
living,  dwelling  and  cohabiting  together  in  lewdness  and  adultery,  being  unmarried,  is  not 
charged  in  the  indictment  to  have  been  notorious.  The  allegation  of  notoriety,  however, 
if  necessary,  is  sufficiently  made  by  tiic  terms  "  openly  and  publicly." 


NUISANCE.  457 

Kotorious  drunkenness.[d) 

That  R.  T.,  on,  &c.,  at,  &c.,  and  on  divers  other  days  before  that 
time,  was  openly  and  notoriously  drunk,  to  the  disturbance  of  the 
public  peace,  to  the  great  injury  of  the  public  morals  of  the  good 
citizens  of  the  state,  and  to  the  evil  example,  &c.,  and  against,  &:c. 
{Conclude  as  in  book  \,  chap.  3). 

Against  a  common  scold. (e) 

That  M.  S.,  late  of,  &c.,  on,  &o;,  and  at  divers  other  days  and 
times  as  well  before  as  since,  at,  &c.,  was  and  is  a  common  scold 
and  disturber  of  the  peace  of  the  neighbourhood,  and  of  all  faithful 
subjects  of  this  commonwealth,  to  the  common  nuisance,  &c.,  to  the 
evil  example,  &.c.,and  against,  &c.     [Conclnde  as  in  book  1,  chap.  3). 

Barratri/.{f) 

That  A.  B.,  lateof,  &c.,on,  &c.,  and  on  divers  other  days  and  times, 
at,  &.C.,  was  and  yet  is  a  common  barrator;  and  that  he  the  said  A.  B., 
on  the  said,  &c.,  and  on  divers  other  days  and  times,  in  the  county 
aforesaid,  divers  quarrels,  strifes  and  controversies,  among  the  honest 
and  quiet  good  people  of  the  state,  did  unlawfully  move,  procure, 
stir  up  and  excite,  to  the  common  nuisance,  &c.,  and  against,  &c. 
(Conclude  as  in  book  1,  chap.  3). 

{d)  Tipton  V.  State,  2  Yerg.  542. 

"As  to  tlie  second  reason  in  arrest  of  judgment,  tliat  the  indictment  does  not  charge 
the  defendant  as  a  common  drunkard,  and  a  nuisance  to  society,  it  cannot  prevail.  The 
assignment  of  tiiis  error  is  in  effect  substantially  the  same  with  the  charge  in  the  indict- 
ment, for  the  indictment  does  not  charge  a  single  act  of  drunkenness  alone,  bnt  repeated 
acts  of  the  like  kind.  It  charges  'that  the  said  [{euben  Tipton,  on  the  second  day  of  Au- 
gast,  1830,  and  on  divers  other  days  befort;  that  time,  was  openly  and  notoriously  drunk.' 
This  shows  that  the  offence  was  a  common  thing,  with  the  defendant.  But  it  is  argued, 
that  a  man  may  be  drunk  as  often  as  he  pleases  in  his  own  house,  which  is  only  a  private 
injury  to  himself,  and  in  which  the  public  is  not  concerned.  Suppose  this  reasoning  were 
admissible,  the  indictment  negatives  its  application  in  the  present  case,  for  the  charge  is, 
that  the  defendant  was  drunk,  openly  and  notoriously,  to  the  disturbance  of  tlse  public 
peace,  and  to  the  great  injury  of  the  public  morals  of-  the  good  citizens  of  the  slate.  Can 
it  be  said  that  tliis  conduct  is  not  an  injury  to  the  put-'.H?.  ''fdiin  evil  example?  The  con- 
trary but  too  often  appears,  and  that  too,  either  accoinpu;.^oU  '"'tb  or  followed  by  fatal 
consequences.  ^^  &'   ' 

"The  pernicious  influence  of  an  evil  example  is  plain  to  every  reflecting  mind,  and  the 
powerful  influence  of  this  vice  upon  society,  not  only  in  its  effects  on  the  relations  of  pri- 
vate life,  but  also  as  being  the  origin,  the  fomenter  and  tlic  promoter  of  the  greater  portion 
of  the  public  crime  of  the  country,  proves  it  to  be,  what  it  is,  an  indict^ible  offence.  The 
judgment  of  the  CUrcuit  Court  was  correct,  and  must  be  afHrmcd." 

See  ante,  p.  423,  n. 

(e)  This  form  is  sufficiently  explicit;  James  v.  Com.  12  S.  &  R.  220;  Com.  v.  Pray,  13 
Pick.  359 ;  (i  Mod.  31 1 ;  9  Cow.  587. 

(/)  Hawk.  b.  2,  c.  25,  s.  59. 

Barratry  is  the  haliitual  moving  and  exciting  or  maintaining  suits  and  quarrels,  cither 
at  law  or  otherwise,  Co.  Lit.  3GS,  and  consists  not  in  any  siiiirle  act,  however  flagrant,  but 
in  a  succession  of  acts,  constituting  a  course  of  behaviour;  Hawk.  b.  2,  c.  25,  s.  59.  It 
is  not,  therefore,  necessary  to  s|M;cify  in  the  indictment  the  particular  acts  on  which  the 
prosecutor  relies;  but  tiic  court  will  compel  him  before  the  trial,  to  inform  the  drfendant 
by  a  smitten  notice  of  those  particulars,  and  will  exclude  him  from  offeiing  evidence  of  any 
others.  Per  Ashhurst  J.,  in  Anson  c.  Stuart,  I  T.  R.  754;  and  see  Dickinson's  Q.  S. 
217,218.' 

39 


458  OFFENCES  AGAINST  SOCIETY. 

Against  inliahitants  of  a  township,  for  not  repairing  a  highway  situate 
within  the  toivnship.{g) 

That  on,  &c.,  there  was  and  still  is  a  certain  common  and  public 
highway,  leading  from,  &c.,  to,  &c.,  used  for  all  the  good  citizens  of 
the  said  state,  with  their  horses,  coaches,  carts  and  carriages  to  go, 
return,  pass,  ride  and  labour,  at  their  free  will  and  pleasure,  and  that 
a  certain  part  of  the  said  highway  situate,  lying  and  being  in  the 
township  of,  &c.,  containing  iu  length,  &c.,  and  in  breadth,  &c.,  on, 
&c.,  and  from  thence  continually  afterwards  until  the  day  of  the 
taking  of  this  inquisition,  at  the  township  aforesaid  in  the  county 
aforesaid,  was  and  yet  is  very  ruinous,  miry,  deep,  broken  and  iu 
great  decay  for  want  of  due  reparation  and  amendment  of  the  same, 
so  that  the  queen's  subjects  through  the  same  way  with  their  horses, 
coaches,  carts  and  wagons  could  not  during  the  time  aforesaid,  nor 
yet  can  go,  return,  pass,  ride  and  labour,  without  great  damage  of 
their  lives  and  loss  of  their  goods:  And  that  the  inhabitants  of 
the  said  township  of,  Slc,  in  the  county  aforesaid,  have  used  and  been 
accustomed  to  repair  and  to  amend,  and  of  right  ought  to  have  re- 
paired and  amended,  and  still  of  right  ought  to  repair  and  amend  the 
said  highway,  so  being  in  decay  as  aforesaid,  when  and  so  often  as  it 
hath  been  and  shall  be  necessary  ;  to  the  great  damage  and  common 
nuisance,  &c.,  through  the  same  way  going,  returning,  passing,  riding 
and  labouring,  and  against,  &c.(A)    {Conclude  as  in  book  1,  chaj}.  3). 


{gr)  Dickinson*?  Q.  S.  6th  ed.  409. 

In  connexion  with  tiiis  class  of  indictments  will  be  considered: 
(1).  The  obUgiition  to  repair  hifjhways  and  bridjjes. 
(2).  Nuisances  arising-  from  a  neglect  of  this  obligation. 
(3).  Requisites  of  indictment  for  the  offence. 

(1).  Oldigntion  to  repair  highways  and  bridges. 

At  common  law  the  obligation  to  repair  all  liighways  lies  on  the  parishes  through  which 
they  pass;  each  being  iiuble  to  repair  such  portions  or  bounds  as  arc  situate  in  its  respec- 
tive limits;  1  Hawk.  b.  1,  c.  76,  s.  5;  and  at  common  law  a  like  obligation  is  imposed  on 
counties  to  repiir  all  public  bridges  within  their  boundaries  ;  see  p.  400  Dickinson's  Q.  S. ; 
which  obligation,  since  tiic  statute  of  bridges,  extt^nds  not  merely  to  the  bridge  itself,  but 
to  the  roads  at  each  end;  \l.  v.  Yorkshire  (West  Riding  Iiihab.),  7  East  588,  attirmed  on 
error  in  Dom.  Proc,  5  Taunt.  2H4,  S.  C.  Nor  docs  the  rule  dirter  in  the  case  of  a  body 
corporate  (or  private  person),  liable  by  prescription  to  rejjair  a  bridge;  and  this,  though 
the  re|)airs  done  by  tiie  |)arties  lial)le  have  been  confined  to  the  fabric  of  the  bridge,  and 
those  to  the  apiiroaclies  h:ive  been  done  by  turnpike  commissioners ;  R.  v.  Lincoln  (Mayor 
and  city  of),  8  A.  &  E.  65  ;  3  N.  &,  P.  273,  S.  C. ;  lor  as  early  as  the  reign  of  Edward 
the  Third,  the  approaches  to  a  bridge,  the  fiibrie  of  which,  but  not  the  Jines  rjusdein  pan- 
tis,  an  ecclesiastical  corjioration  sole  was  boimd  by  prescription  to  repair,  were  yet  held  by 
the  judges  to  be  excrescences  of  the  bridge  itself,  and  as  sucii,  prima  facie  repairable  by  the 
same  party  as  the  bridge  itself;  Abbot  of  C'ombe's  case,  43  Ass.  275,  H.  pi.  37  ;  the  extent 
of  which  last  liability  is  fixed  by  22  Hen.  VJII.  c.  5,  s.  9,  at  three  hundred  feet  "from  any 
of  the  ends  of  it." 

{h)  See  Reg.  v.  Ileagc  (Inhab.),  2  Q.  B.  R.  128.  Custom  laid  to  repair  all  common  and 
public  highmai/s  situate  within  the  said  township  is  not  necessarily  bad,  but  it  seems  better 
to  add  in  sucli  a  c^ise  "that  would  otherwise  be  repairable  by  the  parish  comprising  such 
township;"  R.  r.  Hatfield,  4  H.  &  Al.  75;  R.  v.  Bridekirck,  11  East  304;  sec  1  B.  &  Al. 
352,  356  ;  for  that  avcrmimt  docs  not  make  it  necessary  to  jirove  that  there  are  or  have 
been  ancic.-ril  highways  in  the  said  townsliip;  R.  u.  Barnoldswich  (Inhab.),  12  L.J.  (.VI. 
€.)  44 ;  42  B.  4!)9,  S.  C. 

Dickinson's  Q.  S.  6th  ed.  410. 


NUISANCE. 


4o9 


Against  a  county  for  suffering  a  jmblic  bridge  to  decay.{i) 


That  on,  &c.,  there  was  and  from  thence  hitherto  hath  been  and 
still  is,  a  certain  common  and  pubhc  bridge,  commonly  called  Higii- 


(i)  Dickinson's  Q.  S.  Gth  ed.  412. 

{'■I).  Nuisances  by  omitting  to  repair  public  highways  and  bridges. 

The  consideration  of  prosecutions  for  the  nun  repair  of  highways  and  bridges,  differs  es- 
sentiaily  from  that  of  otlier  parts  of  the  criminal  law;  for  tliough  in  form  they  are  crimi- 
nal proceedings,  in  practice  they  are  usually  resorted  to  as  modes  of  trying  disputed 
questions  of  a  liability  to  repair,  for  no  action  lies  by  an  individual  against  tlie  inhabitants 
of  a  county  for  an  injury. sustained  in  consequence  of  a  public  bridge  being  out  of  repair; 
Russell  and  others  v.  The  Men  Dwelling  in  tiie  County  of  Devon,  2  T.  R.  6G7,  and  cases 
collected;  Rose  v.  Groves,  R.  L.  J.  (C.  P.)  252.  Not  only  on  the  account,  but  in  conse- 
quence of  the  fact  that  the  proceedings  are  different  in  each  state,  de[)ending  almost 
entirely  on  local  legislation,  no  attempt  is  made  to  lay  down  the  law  on  tlie  subject  as 
regulated  by  statute. 

(3).  Requisites  of  indictment  against  parishes  or  counties  for  not  repairing  highways  or 
bridges. 

Indictments  against  a  parish  for  the  common  nuisance  of  not  repairing  highways,  and 
indictments  and  presentments  against  a  county  for  not  repairing  bridges,  must  allege 
atfirmatively  that  the  way  or  bridge  is  public;  and  that  it  lies  within  the  parisli  or  county 
which  is  alleged  to  be  bound  to  repair;  Halsey's  case,  Latch.  183,  cited  1  H.  Bla.  356. 
"To"  Kensington  held  to  exclude  Kensington;  ib.  "From  and  to"  do  not  necessarily  ex- 
clude the  place  named;  R.  v.  Knight,  7  B.  tfc  C.  413;  though  so  held  in  R.  v.  Gainlingay, 
3  T.  R.  513;  1  Leaeh  C.  C.  52.S,  S.  C;  and  again  since  R.  v.  Kniglil,  in  Reg.  v.  Botfield, 
1  C.  &  M.  151  ;  (R.  V.  Knight  not  cited).  See  R.  v.  Camtield,  6  E^i.  136  ;  R.  v.  Steven- 
ton,  C.  &  K.  55.  "  From  and  through"  places  named,  is  said  to  exclude  the  termini ;  R. 
V.  Upton,  6  C.  &  P.  133,  per  Tindal  C.  J.  As  to  "  towards,"  see  3  A.  &  E.  181,  Lem- 
priere  v.  Humphrey;  and  1  East  377;  Wright  v.  Rattray  (cited  in  7  B.  &.  C.  266;  De 
Beauvoir  ».  Welch);  Rouse  v.  Bardin,  1  H.  Bla.  351.  "Abutting  on,"  sed  3  A.  &  E. 
183.  "Towards  and  unto  B.,"  are  satisfied  by  a  line  of  way  to  B.,  which  turns  backwards 
in  the  middle,  and  then  returns  to  B.  by  a  way  recently  dedicated;  R.  v.  Devonshire 
(Marchioness),  4  A.  &  E.  232,  "  From  and  through  the  town  of  U.  towards  the  parish  of 
G.,"  excludes  (Hammond  v.  Brewer,  1  Burr.  376),  the  terminus  U.,  so  as  not  to  permit  a 
prosecu^r  to  show  a  road  in  U.  to  be  out  of  repair;  R.  v.  Uptonon-Severen,  6  C.  &-  P.  134, 
per  Tindal  C.  J.;  for  though  a  township  is  not  necessarily  conterminous  with  a  parish,  it 
may  be  bound  by  custom  to  repair  a  highway  within  it.  "  From  the  town  of  C.  to  a  place 
railed  H.  hill,  and  that  defendant  illegally  erected  gates  between  the  said  town  of  C.  and 
H.  hill,"  Patteson  J.,  held  the  town  excluded;  Reg.  v.  Fisher  et  al.,  8  C.  &  P.  612;  2 
S.iund.  158,  a.  n.  69  ;   Dickinson's  Q.  S.  401. 

The  indictment  must  also  charge  the  bridge  to  be  out  of  repair,  and  should  conclude  by 
alleging  that  the  inhabitants  of  the  county  or  parish,  or  that  a  corporation  aggregate,  or  a 
railway  or  canal,  &c.,  company,  are  bound  to  repair  it;  Reg.  v.  Birmingham  and  Glouces- 
ter Railway  Company,  9  C.  &,"P.  409  ;  Parke  B.;  1  Gale  &,  D.  457,  S.  C;  2  Q.  B.  R.  47, 
233.  If  the  bridge  or  way  was  a  highway  for  all  purposes  (t.  e.  public),  at  the  time  of  the 
nuisance  committed  in  not  repairing,  &.C.,  or  obstructing  it,  the  term  highway  is  sufficient, 
the  words  "common  and  public"  being  mere  repetition;  2  Saund.  158,  n.  (4),  citing  As- 
pindall  V.  Brown,  3  T.  R.  265;  but  if  the  highway  is  stated  to  have  been  such  from  time 
immemorial,  which  is  unnecessary,  the  prosecution  would  tail,  should  it  appear  that  sixty 
years  ago  it  was  put  an  end  to  by  the  enclosure  act,  though  it  has  been  since  used  and  re- 
paired by  the  district  indicted;  2  Saund.  158,  d. ;  Dyer,  tbl.  33;  R.  v.  Jones,  2  B.  &,  Ad. 
fill;  R.  0.  Hoilingberry,  4  B.  &  C.  329  ;  Reg.  v.  Westmark  (Tithing),  2  M.  &.  Rob.  305, 
Maule  J.  If  there  be  a  limitation  in  the  right  of  way,  as  if  it  is  only  used  by  the  public 
when  it  is  dangerous  to  pass  through  an  adj.icent  stream,  such  limitation  siiould  be  stated  ; 
Allen  I'.  Ormond,  8  East  4,  n.  (a) ;  R.  v.  Northamptonshire  (Inhab.),  2  .M.  &  S.  262.  An 
allegation  of  a  "  pack  and  prime"  way  is  not  supported  by  proof  of  a  "  carriage"  way,  and 
the  defendant  will  be  acquitted;  R. '».  St.  Weonard's,  6'C.  &  P.  5-2,  Alderson  J.  It  is 
not  necessary  to  state  the  termini  of  the  way,  but  when  stated  they  must  be  proved,  and  a 
variance  in  this  respect  will  be  fatal;  Rouse  v.  Bardin,  I  H.  Bla.  351  ;  6  C.  &,  P.  5^2. 
It  is  usual  to  state  the  extent  of  the  way  which  is  out  of  repair;  but  it  may  be  doubjed 
whether  this  is  necessary  ;  however,  though  the  court  does  not  at  present  estimate  the  fine 
from  the  description  of  the  length  and  breadth  of  the  nuisance,  its  insertion  cannot  preju- 
dice ;  2  Saund.  158,  n.  7.     Objection  to  the  too  general  descnpliun  of  a  road  in  an  indict- 


400 


OFFENCES  AGAINST  SOCIETY. 


bridge,  otherwise  Haigh-bridge,  situate  and  being  in  the  parish  of  B., 
in  the  County  of  N.,  in  the  common  highway  leading  from  the  town 
of  B,  in  the  county  aforesaid,  towards  and  unto  the  town  of  C.  in 
the  same  county,  being  a  common  highway  for  all  the  good  citizens 
of  the  said  state,  on  foot  and  with  their  horses,  coaches,  carts  and 
other  carriages  to  go,  return,  pass,  repass,  ride  and  labour,  and  that 
the  said  common  and  public  bridge,  on  the  said,  &c.,  aforesaid,  and 
continually  from  thence  until  the  day  of  the  taking  of  this  inquisition, 
at  the  parish  of  B.  aforesaid  in  the  county  aforesaid,  was  and  yet  is 
ruinous,  broken,  dangerous  and  in  great  decay  for  want  of  needful 
and  necessary  upholding,  maintaining,  amending  and  repairing  the 
same,  so  that  the  good  citizens  of  the  said  state  in,  upon  and  over  the 
said  bridge,  on  foot  and  with  horses,  coaches,  carts  and  carriages  could 
not,  and  cannot  pass  and  repass,  ride  and  labour,  without  great  dan- 
ger of  their  lives  and  loss  of  their  goods,  as  they  ought  and  were  ac- 
customed to  do,  and  still  of  right  ought  to  do:  And  that  the  inha- 
bitants of  the  County  of  N.  aforesaid,  of  right  have  been  and  still  of 
right  are  bound  to  repair  and  amend  the  said  common  bridge,  when 
and  so  often  as  it  shall  be  necessary;  to  the  great  damage  and  com- 
mon nuisance  of  all  the  said  citizens,  upon  and  over  the  said  bridge, 
on  foot  and  with  their  horses,  coaches,  carts  and  other  carriages, 
about  their  necessary  affairs  and  business  going,  returning,  passing, 
riding  and  labouring ;  against,  &c.   {Conclude  as  in  book  1,  chap.  3). 

Jlgainst  the  inhabitants  of  a  parish  for  not  repairing  a  common  high- 
way.{j) 

That  on,&c.,(/t)  there  was  and  yet  is  a  certain  common  and  ancient 
highway(/)  leading  from,  &c.,  towards  and  unto,  &,c.,  used  tbr^ill  the 
state's  citizens,  with  their  horses,  coaches,  carts  and  carriages  to 
go,  return,  pass  and  repass,  at  their  will  and  pleasure;  and  that  a 
certain  part  of  the  same  common  highway  situate,  lying  and  being 


ment  can  only  he  taken  by  plea  in  abatement;  R.  v.  Hammersmith  (Inhab.),  1  Stark.  357, 
e.  g;  by  statinfr  tlial  the  road  deseiibctl  in  the  plea  was  equally  vvell  known  by  the  dcscrip- 
lion  given  in  the  indietinent.  When  tlie  in(netnient  is  ajruinst  an  individual,  or  select 
body,  on  a  peculiar  oblio-ation  ajrninsl  common  riirhl,  it  is  not  suflieient  to  state  a  liability 
to  repair,  but  it  is  necessary  to  show  how  that  liability  arises,  as  "  by  reason  of  the  tenure 
or  enclosure  of  certain- lands ;"  or  in  the  case  of  an  extra  parochial  hamlet  or  himdrcd  not 
otherwise  liable,  a  usape  "  from  time  imn>eniorial ;"  2  Sauiid.  15"f,  n.  9  ;  R.  v.  Kinjrsmoor 
(In-hal).),2  H.  &  O.  li)0.  The  inhabitants  of  the  several  townships  in  a  parish  may  be 
conjointly  indicted  for  not  rcpairin<r  a  road  in  it;  R.  v.  Auckland  (luhab.  of  three  town- 
ships named),  1  A.  &  FO.  714,  S.  C. ;  1  M.  &.  Rob.  288;  sec  2  B.  &.  C.  1G6,  R.  v. 
Machynlesh  ;  Dickinson's  Q.  S.  tith  cd.  4U2. 

(i)   Dickinson's  Q.  S.  6th  ed.  408. 

{k)  Allegation  of  the  antiquity  of  the  road  is  now  commonly  omitted,  and  the  langruage 
generally  runs  as  above,  or  that  "long  befiire,  and  at  the  time  of  the  commencement  of 
the  nuisance  hereinafter  mentioned,  there  was,  and  of  right  ought  to  be,"  &-c. ;  3  T.  R.  265. 
A  wijy  may  be  described  as  a  common  highway  for  carls,  carriages,  &c.,  though  it  has 
been  always  arched  over,  if^  though  not  high  enough  to  let  every  highway  wagon  pass 
under  it,  it  will  admit  common  carriages  to  ])ass;  I{.  v.  Lyon  et  aL,  1  (J.  &  I*.  527  ;  R.  & 
M.N.  P.  C;.  150,  per  Littledale  J.  ;  Dickinson's  Q.  S.  6th  cd.  409. 

(Z)  Meaning  a  highway  for  all.  wanner  of  things;  [{.  v.  Hatfield,  Ca.  t.  Hard.  315.  A 
road  is  not  less  a  lii<rhiray  b(  cause  part  of  it  i.-.  tunipike  road;  Reg.  v.  Stevenlon,  C.  &  K. 
5.". ;  Dickinson's  Q.  rt.  Glli  cd.  409, 


NUISANCE.  401 

in  the  parish,  &c.,of  A.  B.,in  the  same  (co?fn/y),  containing  in  length, 
&c.,  in  breadth,  &c.,  on,  &c.,(m)  and  continually  afterwards  until  the 
present  day  was,  and  yet  is  very  ruinous,  deep,  broken  and  in  great 
decay,  for  want  of  due  reparation  and  amendments,  so  that  the  citizens 
of  the  state  through  the  same  way,  witli  their  horses,  coaclies,  carts 
and  carriages  could  not,  during  the  time  aforesaid,  nor  yet  can  go, 
return,  pass  or  repass,  as  they  ouglit  and  were  wont  to  do:  And 
that  the  inhabitants  of  the  parish  of  A.  B.,  aforesaid,  in,  &c.,  afore- 
said, the  said  common  highway  (so  in  decay)  ought  to  have  repaired 
and  amended,  and  still  of  right  ought  to  repair  and  amend,  when 
and  as  often  as  it  should,  shall  or  maybe  necessary;  to  the  great 
damage  and  common  niiisance{n)  of  all  the  people  of  the  state 
through  the  same  highway  going,  returning  or  passing,  and  against, 
&c.     [Conclude  as  in  book  1,  chap.  3). 

Against  a  corporation  of  a  town  for  suffering  a  water-course  lohich  sup- 
plied the  inhabitants  icilh  irater,  and  ichich  Ihey  ivere  bound  to  cleanse, 
<^'C.,  to  be  filthy  and  unicholesome.{o) 

That  from  time  whereof  the  memory  of  man  is  not  to  the  contrary, 
there  was,  and  still  is  a  certain  and  ancient  water-course(/(),  com- 
monly called  Trout  Beck,  leading  from  a  certain  place  called  the  cor- 
poration dam,  in  the  parish  of,  &c.,  in  the  County  of  B.,  to  a  certain 
place  called  the  Falls,  in  the  parish  of,  &c.,  in  the  suburbs  of  the  town 
of  B.  aforesaid,  in  the  County  of  B.  aforesaid,  used  by  all  the  people 
of  the  said  state  for  the  time  being  inhabiting  and  residing  in  and 
about  the  said  parishes  of  and  ,  to  supply  them  with 

water  for  the  use  and  benefit  of  themselves  and  their  families ;  and 
that  a  certain  part  of  tlie  said  common  and  ancient  watercourse  in 
the  parish  of  St,  N.  aforesaid,  in  the  suburbs  of  the  said  town  of  B., 
in  the  County  of  B.  aforesaid,  containing  in  length  five  hundred 
yards,  and  in  breadth  ten  feet,  on,  &c.,  and  continually  afterwards 
until  the  day  of  the  taking  of  this  inquisition,  at,  &c.,  aforesaid,  was 
and  still  is  foul,  filled  and  choked  up  with  mud,  weeds,  rubbish,  dirt 
and  other  filth,  whereby  the  course  and  passage  of  the  water,  which 
should  and  ought  and  before  that  time  was  used  and  accuston:\£d  to 
run  and  flow  through  the  same  water-course,  was  during  all  tlie  time 
last  aforesaid,  and  still  is  so  greatly  stopped  and  obstructed,  that  the 
people  of  the  said  state  inhabiting  and  residing  in  and  about  the  said 
parish  9f  St.  N.,  during  all  the  time  last  aforesaid  was,  and  still  are 

(m)  Some  day  about  the  commencement  of  the  nuisance.  Only  state  the  termini,  when 
fhey  can  be  readily  ascertained,  and  no  doubt  can  be  raised  respecting  them.  The  way 
must  be  distinctly  averred  to  be  within  the  district  sought  to  be  charged  witii  the  repair; 
R.  V.  Pendcrvvn  (Inhab.),  9  T.  R.  513;  R.  v.  Bishop's  Nuckland  (Inhab.),  1  A.  &,  E.  744; 
Dicltinson's  Q.  S.  6tl)  ed.  409. 

(71)  Neccss'iry;  1  Eiawk.  c.  32,  p.  692;  R.  v.  Hughes,  4  C.  &.  P.  373;  Stra.  686-688;  16 
East  194;  1  Hurr.  333;  1  Mod.  107  ;  R.  v.  Davey,  5  Esp.  217,  laid  "inhabitants,"  but  sem- 
i//e,  wrong;  Dickinson's  Q.  S.  Gtli  ed.  409. 

(o)  Dickinson's  Q.  S.  6th  ed.  418. 

Ip)  If  a  water-course  be  stopped  to  the  nuisance  of  the  county,  and  none  appear  bound 
by  prescription  to  clear  it,  those  who  have  the  riuht  of  fishing,  and  the  neighbouring  towns 
who  have  the  immediate  use,  may  be  comjicUed  to  remove  the  obstruction;  Hawk.  b.  1,  c. 
75  ;  Dickinson's  Q.  S.  Gih  ed.  418. 

39* 


462  OFFENCES  AGAINST  SOCIETY. 

not  only  deprived  of  the  benefit  and  advantages  of  the  water,  wliich, 
during  all  tlie  time  last  aforesaid,  sliould  and  ought  to  have  run  and 
tiowed,  and  still  of  right  ought  to  run  and  flow  through  the  said 
water-course,  in  its  usual  and  accustomed  manner,  but  also  the  said 
mud  and  other  filth  during  all  the  time  last  aforesaid  became  and 
were  and  still  are  very  offensive  and  nauseous,  and  the  said  water 
thereby  greatly  corrupted,  and  unwholesome  to  be  drunk  by  man, 
and  by  means  ther(a)f  divers  noisome  and  unwholesome  smells  did 
from  them  arise  there,  so  that  the  air  thereby  was  and  still  is  greatly 
corrupted  and  infected:  And  that  the  mayor,  bailiffs  and  com- 
monalty of  the  said  town  of  B.,  in  the  said  County  of  B.,  for  the  time 
being. (^)  the  said  common  and  ancient  water-course  so  as  aforesaid 
being  loul,  choked  and  filled  up  as  aforesaid,  ought  to  empty,  cleanse 
and  scour,  until  the  said  grievance  have,  from  the  time  whereof  the 
memory  of  man  is  not  to  the  contrary,  emptied,  cleansed  and  scoured, 
and  have  used  and  been  accustomed  to  empty,  cleanse  and  scour, 
and  still  of  riglit  ought  to  empty,  cleanse  and  scour,  when  and  as 
often  as  the  same  should  or  shall  be  necessary;  yet  the  said  mayor, 
bailiffs  and  commonalty  have  not  emptied,  cleansed  or  scoured, 
nor  caused  to  be  emptied,  cleansed  or  scoured,  the  said  conunon  and 
ancient  water-course,  so  being  foul,  filled  and  clioked  up  as  aforesaid, 
as  ihey  ought  to  have  done,  and  still  of  right  ought  to  do,  but  diu'ing 
all  the  time  last  aforesaid,  permitted  and  suffered,  and  still  do  permit 
and  suffer  the  said  water-course  to  be  foul,  filled  and  choked  up  as 
aforesaid,  for  want  of  emptying,  cleansing  and  scouring  the  same ;  to 
the  great  damage  and  common  nuisance  of  all  the  people  of  the  said 
state,  not  only  there  residing  and  inhabiting,  but  also  going,  returning, 
passing  and  repassing  by  the  same,  and  against,  &c.  {Co7iclude  as  in 
hook  1,  chajj.  3). 

Ivformation  in  JVeiu  Hampshire  against  a  town  for  refusing  to  repair,  ^-c. 

That,  (describing  the  road)  long  before  the  commencement  of  the 
nuisance  hereinafter  mentioned,  there  was,  ever  since  has  been  and 
still  is,  a  common  highway  in  the  town  of  in  said  county,  used 

by  tvll  the  good  citizens  of  said  state  in  and  through  the  same  to  pass 
and  repass  with  their  horses,  carriages  and  teams  at  their  will  and 
pleasure  ;  and  that  said  highway,  so  situated  in  said  beginning 

at  {giving  the  limits),  being  rods  in  width  and  in  length, 

was,  on,  &c.,  last  past,  ever  since  has  been  and  still  is  rocky,  rutty, 
broken,  uneven,  ruinous  and  in  great  decay  in  want  of  due  reparation 
thereof,  so  tliat  the  good  citizens  of  said  state  for  and  during  the  time 
aforesaid  could  not  and  still  cannot  pass  and  repass  in  and  through 
the  said  part  of  said  highway  so  in  decay  as  aforesaid,  as  they  used, 
were  wont  and  ought  to  do,  without  great  danger  of  their  lives  and 
loss  of  their  goods;  and  that  the  said  town  of  during  all  the 

time  aforesaid  wor(?  and  still  are  by  law  holden  and  bound,  the  said 
part  of  said  highway  to  repair,  whenever  the  same  should  or  may  be 
necessary;  yet  the  said  town  of  dining  all  the  time  last  albre- 

(17)  See  the  indictment  iu  R.  v.  Kingston  Corporation,  6  .M.  &  S.  SM,  n.;   Dickinson's 
Q.  .S.  Gtlj  ctl.  \VJ. 


NUISAiVCE.  463 

sriid  did  refuse  and  neglect  and  still  doth  refuse  and  neglect  to  repair 
the  said  highway  so  in  decay  as  aforesaid,  to  the  great  danger  and 
conmion  nuisance  of  said  good  citizens,  contrary,  &c.,  and  agaiiit^t, 
&c.     {Conclude  as  in  book  1,  chiip.  3). 

Against  ihe  i?) habitants  of  a  town  for  not  repairing  a  highway,  in  Mas- 
sachusetts.{r) 

That  on,  &c.,  there  was  and  from  thence  hitherto  hath  been,  and 
still  is  a  public  road  and  common  highway,  in  tlie  town  of,  &c.,  lead- 
ing from  in  the  said  town  of  to  in  the  same  town, 
for  all  the  citizens  of  said  commor:iwealth,  with  their  horses,  teams, 
carts  and  carriages  to  go,  return,  pass,  repass,  ride  and  labour,  at 
their  free  will  and  pleasure ;  and  that  the  aforesaid  public  road  and 
common  highway  situated  as  aforesaid,  in  the  said  town  of  on, 
&c.,  was,  and  from  thence  until  the  day  of  taking  of  this  inquisition, 
hath  been,  and  still  is  out  of  repair,  ruinous,  miry,  broken  and  en- 
cumbered with  rocks  and  stones,  so  as  to  be  inconvenient  and  dange- 
rous to  the  lives  and  safety  of  the  citizens  of  this  commonwealth 
having  occasion  to  pass  and  repass,  ride  and  labour  upon  the  public 
highway  and  common  road  aforesaid,  with  their  horses,  teams,  cans 
and  carriages;  and  that  the  inhabitants  of  the  said  town  of  in 
their  corporate  capacity,  are  bound  and  obliged  by  the  laws  of  this 
conmionwealth  to  keep  and  maintain  the  public  road  and  common 
way  aibresaid,  in  safe,  convenient  and  complete  repair;  yet  tlie  said 
inhabitants,  during  all  the  days  and  times  aforesaid,  at,  &c.,  aforesaid, 
have,  and  still  do  neglect  and  refuse  to  keep  the  said  public  road  and 
common  highway  in  such  repair;  to  the  great  injury  and  common 
nuisance  of  all  the  citizens  of  said  commonwealtli  having  occasion 
to  pass,  repass  and  labour  upon  the  road  aibresaid,  with  their  horses, 
teams,  carts  and  carriages;  against,  &c.-,  and  contrary,  «Sz:c.  {Con- 
clude as  in  book  1,  chap.  3). 

Against  svpervisor  in  Pennsylvania  for  refusing  to  repair  road. 

That  long  before  and  at  the  commencement  of  the  nuisance  here- 
inafter mentioned,  there  was  and  of  right  ought  to  liave  been,  and 
still  of  riglit  ought  to  be,  a  certain  public  road  and  common  highway 
leading  from  for  all  the  citizens  of  the  said  common wealtii 

to  go,  return,  pass  and  repass,  ride  and  labour,  on  loot  and  on  horse- 
back, and  with  their  horses,  coaches,  carts  and  carriages  in  and  along 
the  same,  at  their  free  will  and  pleasure;  and  that  a  certain  part  of 
the  said  public  road  and  common  highway  situate,  lying  and  being 
in  the  township  of  in  the  County  of  Columbia  afosesaid,  of 

the  length  of  and  of  the  breadth  of  feet,  and  also  oilier 

parts  of  tlie  said  public  road  and  common  highway  in  the  township 

(r)  This  indictment  is  taiicn  hy  Mr.  Davis,  Prcc.  197,  from  2  Stark.  667,  and  made  con- 
formable to  llie  prtcificnts  used  in  Alassucliuselts. 

The  repair  of  public  roads  in  Massachusetts,  says  Mr.  Davis,  Piec.  195,  is  provided 
for  by  statute  of  17fc6,  c.  81.  If  there  be  biidgcs  or  causeways  on  the  road  complained  of, 
the  tact  may  be  alleged  in  the  indictment  thus  ;  "  and  the  btveial  bridges,  &-c  ,  situated  on 
the  saiDc  load,"  tScc.,  arc  out  t>f  np^ir,  &,c. 


4(51  OFFENCES  AGAIXST  SOCIETY. 

aforesaid,  were,  on,  &c.,  and  from  thence  until  the  day  of  the  finding  of 
this  inquisition,  at  the  township  of  aforesaid,  have   been  and 

stiU  are  so  decayed  for  want  of  opening  and  repairing  the  same,  that 
the  citizens  of  the  said  common weahli  travelhng  along  the  said  pub- 
lic road  and  common  highway,  with  their  horses,  coaches,  carts  and 
carriages,  cannot  upon  the  same  so  safely  pass  and  travel  as  of 
right   they  ought ;   and  that  late  of,  &-c.,  and  late  of, 

&c.,  yeomen,  were  on,  &c,,  duly  elected  by  the  qualified  voters  of 
the  township   of  supervisors  of  the  roads  and  public  highways 

of  the  said  township,  to  hold  their  said  office  for  the  term  of  one  year, 
to  wit,  at  the  township  atbresaid,  at  the  county  aforesaid,  and  within 
the  jurisdiction  of  this  court;  and  that  the  said  and  the  said 

supervisors  aforesaid,  are  bound  and  obliged  by  the  laws  of 
the  said  commonwealth  to  keep  and  maintain  the  public  road  and 
connnon  highway  aforesaid  in  safe,  convenient  and  complete  repair; 
yet  the  said  and   the  said  during  all  the  days  and  times 

aforesaid,  at  township  aforesaid,  have  and  still  do  neglect  and 

riifuse  to  keep  the  said  public  road  and  common  highway  in  such 
repair,  to  the  great  damage  and  common  nuisance,  &c.,  contrary,  &c., 
and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Against  a  supervisor  in  Pennsylvania  for  refusing  to  open  a  road,  <5'C.(.s-) 

That  at  the  county  Court  of  General  Quarter  Sessions  of  the  Peace 
and  Gaol  Delivery,  holden  at  Philadelphia  in  and  for  the  County  of 
Philadelphia,  before  P.  F.,  W.  R.  and  1.  H.,  Esqrs.,  and  their  asso- 
ciates, justices  of  the  same  court,  on,  &,c.,  a  certain  public  road  lead- 
ing to  Oxford  church,  and  extending  thence  over  N.  and  J.  D.'s  lands 
to  J.  F.'s  line,  thence  along  the  line  between  the  said  F.'s  and  D.'s 
land  to  J.  W.'s  land,  thence  on  the  line  between  the  said  J.  F.'s  land 
and  land  of  J.  VV.  and  R.  W.,  to  a  corner,  thence  on  the  line  between 
the  lands  of  the  said  J.  F.  and  R.  W.,  to  a  corner  stone,  thence  be- 
tween the  lands  of  the  said  J,  F.  and  VV.  to  the  line  of  H.  F.'s  land 
on  Rock  run,  thence  crossing  the  said  run  over  the  said  H.  F.'s  land, 
leaving  part  of  a  road  belbre  that  time  laid  out  on  bad  ground,  to  the 
line  of  land  late  S.  R.'s,  and  thence  on  the  line  between  the  said  R.'s 
and  F.'s  lands,  to  a  road  laid  out  from  R.  M.'s  mill  to  Germanlown, 
was  laid  ont,  &.C.,  confirmed  by  the  said  justices  at  the  same  sessions, 
and  the  supervisors  of  the  highways  of  the  township  and  townships 
through  which  the  said  road  runs  were  then  and  there  by  the  same 
justices,  at  their  said  sessions,  ordered  and  directed  to  open  and  clear 
the  same  as  by  law  directed;  of  which  J.  S,,  late  of  the  said 
county,  yeoman,  afterwards,  to  wit,  on,  &c.,  then  and  still  being 
a  supervisor  of  the  roads  and  highways  in  and  for  the  township  of 
Bristol  in  the  said  county  (the  said  township  being  one  of  the  town- 
ships through  which  the  said  road  runs),  had  notice;  and  the  inquest 
aforesaid,  upon  their  oaths  and  atfirmations,  do  further  present,  that 
the  said  J.  S.,  the  duty  of  his  said  office  of  supervisor  of  the  high- 
ways aforesaid,  altogether  disregarding,  and  well  knowing  the  same 

(s)  Tliis  count  was  drawn  by  Mr.  Bradford,  in  1786. 


NUISANCE.  4G5 

road  to  be  laid  out  as  aforesaid,  by  the  authority  aforesaid,  from  the 
day  and  year  last  aforesaid  until  tlie  day  of  the  finding  of  this  inqui- 
sition, at  the  township  and  county  aforesaid,  hatli  wholly,  unlawfully 
and  contemptuously  neglected  and  refused  to  employ  labourers  to 
open  and  clear  the  same  road,  and -hath  wholly  neglected  to  take 
care  that  the  same  road  should  be  opened,  cleaned  and  amended,  as 
by  law  directed,  so  that  the  liege  citizens  of  this  conmionwealth  on 
and  along  the  same  road  cannot  pass  and  repass,  to  the  great  damage 
and  common  nuisance,  &c.     (^Conclude  as  in  book  1,  chap.  3). 

Against  overseer  in  A'ort/i  Carolina  for  refusing  to  repair  road. 

That  on,  &:c.,  there  was  and  from  thence  hitherto  there  hath  been, 
and  still  is  a  certain  common  and  public  highway  leading  from 
in  the  county  of  towards  and  unto  in  the  same  county, 

lor  all  the  good  people  of  North  Carolina  to  go,  return,  pass,  repass, 
ride  and  labour,  with  their  horses,  coaches,  carts  and  carriages,  in  and 
along  the  same,  at  their  free  will  and  pleasure,  and  that  on  the  day 
aforesaid  a  certain  part  of  the  said  highway,  situate  and  being  in  the 
county  of  aforesaid,  extending  from  and  continuing  to 

in  length  one  hundred  yards  and  in  breadth  fifteen  feet,  was 
and  still  is  in  the  county  aforesaid  very  ruinous,  miry,  deep,  broken 
and  in  great  decay,  for  want  of  due  and  necessary  amendment  and 
reparation  of  the  same,  so  that  the  good  people  of  North  Carolina  in 
and  along  the  same  highway,  with  their  horses,  carts  and  carriages, 
could  not  during  the  tune  aforesaid  go,  return,  pass,  ride  and  labour 
without  danger  to  themselves  and  the  loss  of  their  goods,  and  that 
during  all  that  time  was  overseer  of  the  said  highway,  and 

ought  as  overseer  to  have  repaired  and  amended  the  same  ;  but  that 
he  unlawfully  and  negligently  refused  so  to  do,  to  the  common  nui- 
sance, &c.     {Conclude  as  in  book  1,  chap.  3). 

Against  commissioner  in  South  Carolina  for  refusing  to  repair  road. 

That  on,  &c.,  there  was  and  from  thence  liitherto  there  hath  been, 
and  still  is  a  certain  common  and  public  road  and  highway,  leading 
from  towards  and  unto  for  all  the  good  citizens  of  the 

said  state  to  go,  return,  pass  and  repass,  ride  and  labour,  with  their 
horses,  coaches,  carts,  carriages  and  wagons,  in  and  along  the  same, 
at  their  free  will  and  pleasure ;  and  that  a  certain  part  of  the  said 
common  and  public  road  and  highway  situate,  lying  and'  being  in 
the  district  of  aforesaid,  extending  from  and  containing 

in  length  divers,  to  wit,  and  in  breadth  divers,  to  wit, 

feet,  on  the  aforesaid  day  of  in  the  year  last  aforesaid, 

and  from  thence  until  the  taking  of  this  inquisition,  at  the  place  afore- 
said, in  the  district  and  state  atbresaid,  was  and  still  is  very  ruinous, 
miry,  deep,  broken  and  in  great  decay  and  want  of  repair  and  amend- 
ment, so  that  the  good  citizens  of  the  said  state  in  and  along  tlie  said 
public  road  and  highway,  with  their  horses,  coaches,  carts,  carriages 
and  wagons,  could  not  during  the  time  aforesaid,  nor  yet  can  go, 
return,  pass  and  repass,  ride  and  labour,  without  great  danger  of  their 


4G6  OFFENCES  AGAINST  SOCIETY. 

lives  and  loss  of  their  goods;  and  that  being  commissioner  of 

that  part  of  the  said  common  and  public  road  and  highway,  so  being 
ruinous,  miry,  deep,  broken  and  in  great  decay  and  want  of  repair 
and  amendment,  as  aforesaid,  and  by  law  bound  to  keep  the  same  in 
good  order,  repair  and  amendment,  wholly  and  continually,  from  the 
aforesaid  day  of  in  the  year  last  aforesaid,  until  the  taking 

of  this  inquisition,  at  the  place  aforesaid  in  the  district  and  state  afore- 
said, failed  and  neglected  to  repair,  amend  and  put  in  good  order  the 
same,  to  the  great  injury  and  common  nuisance,  &c.  [Conclude  as 
in  hook  1,  chap.  3). 

Against  overseer  in  Alahajna  for  same. 

That  late  of,  &c.,  in  said  county,  on,  &c.,  hi  the  county  afore- 

said, did  fail  and  neglect  to  keep  that  part  of  said  road,  the  bridges 
and  causeways  therein,  within  his  prechict,  clear  and  in  good  repair, 
and  did  then  and  there  suffer  the  same  to  remain  uncleared  and  out 
of  repair  for  ten  days  at  one  time,  to  wit,  between  the  day  of 

last  aforesaid,  and  the  day  of  in  the  year  of  our 

Lord  eighteen  hundred  and  without  being  hindered  by  high 

water,  bad  weather  or  other  sufficient  cause,  contrary,  &.c.,  and 
against,  &.c.     {Conclude  as  in  book  1,  chap.  3). 

And  the  grand  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  late  of  said  county,  overseer  as  aforesaid 

of  the  road  aforesaid,  on  the  day  and  year  last  aforesaid,  in  the  county 
aforesaid,  did  fail  and  neglect  to  set  up  neat  and  permanent  mile  posts 
at  the  end  of  each  mile,  in  continuation  on  that  part  of  his  said  road 
within  his  precinct,  contrary,  &c.,  and  against,  &c.  {Conclude  as  in 
book  \,  chap.  3). 

VIOLATIONS    OF    LICENSE    LAWS. 

Presuming  to  he  a  common  seller  of  wine  under  the  Maine  statute.{t) 

That  B.  S.  of,  &c.,  on,  &c.,  and  on  divers  other  days  since  that 
time  and  up  to  the  present  time,  at  Bath  aforesaid,  did  take  upon 
himself  and  presume  to  be  a  common  seller  of  wine,  brandy,  rum 
and  strong  liquors  by  retail,  and  in  less  quantity  than  twenty-eight 
gallons,  at  one  and  the  same  time  delivered  and  carried  away,  ille- 
gally and  without  license  therefor,  and  did  then  and  tliere  as  afore- 
said, sell  and  cause  to  be  sold  to  divers  [)ersons  to  the  jurors  unknown, 

(«)  State  V.  Stinson,  17  Maine  R.  155. 

"  The  Stat.  IH.3."),  c.  19.'},"  said  Weston  C  .T.,  "  liaviiiir  provided  that  tlic  penalties  incurred 
under  the  act  of  IH.'M,  c.  141,  to  which  that  was  additional,  niiirht  be  recovered  by  indict- 
iinnit,  it  in  necessarily  implied  that  it  must  he  in  the  name  of  the  state.  What  penalty  or 
rtrtijitare  is  incurred,  and  to  what  uses  applird,  depends  on  the  law,  and  need  not  be  set 
forth  in  the  indictment.  Tlicre  is  hut  one  olfence  (-harired  against  the  defendant,  and  that 
i.-i,  his  beitinr  a  common  retailer  without  iicen,s(!.  This,  it  is  expressly  averred,  he  did  take 
Hales  to  divers  persons  of  div(!rs  (juantitios  of  said  stronjr  liquors,  from  a  specified  day  to 
it  upon  himself  to  be.  In  order  to  avoid  unnecessary  prolixity,  general  averments  of  divers 
tli't  findiriir  of  the  indictment,  have  been  received  as  a  sutlieiiuit  specification  of  the  olTencc, 
which  ciMisisls  in  bf'iri<r  a  common  retailer  without  license." 

!See  also  Slate  v.  Cottle,  15  Maine  473. 


TIPPLIIVG  HOUSES,  &C.  467 

divers  quantities  of  said  strong  liquors,  in  less  quantity  than  twenty- 
eight  gallons  by  retail  as  aforesaid,  against,  &.C.,  and  contrary,  iv:c. 
{Conclude  as  in  book  1,  chap.  3). 

Selling  liquors  hj  retail  in  JVew  Ham'pshire. 

That  A,  B.  of,  &c.,  on,  &c.,  at,  &c.,  not  being  then  and  there  a 
licensed  taverner  or  retailer,  did  then  and  there  unlawfully  sell,  {stal- 
ing the  measure),  of  spirituous  liquors  to  one,  {stating  the 
vendee),  contrary,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Dealing  in  liquor,  ^'C,  without  license,  under  s.  \,  c.  83,  Vermont  Reu. 
Stat.{u) 

That  the  respondents,  on,  &c.,  not  having  a  license,  &c.,  did  deal  in 
the  selling  of  domestic  distilled  spirituous  liquors  in  a  less  quantity  at 
one  time  than  twenty  gallons,  and  did  then  and  there  sell  to  one  J. 
G.,  one  pint  of  alcohol,  being  domestic  distilled  spirituous  liquor,  &c. 

Selling  liquor  by  the  small,  under  same.{v) 

That  C.  A.  M.  of,  &c.,  on,  &c.,  at,  &c.,  did  sell  and  dispose  of  at  his 
the  said  C.  A.  M.'s  store  in  Rutland  aforesaid,  one  gill  of  rum,  one 

(m)  State  V.  Chandler  and  Keyes,  15  Verm.  425. 

Hubbard  J. :  "  Section  first  of  chapter  83  of  the  revised  statutes  makes  it  unlawful  for  any 
person  to  sell  any  spirituous  liquors  in  a  less  quantity  than  twenty  g-allons  without  a  license. 
The  14tli  section  of  the  snme  chapter  provides,  that  any  person  who  shall  deal  in  the  sell- 
ing' of  foreign  or  domestic  distilled  spirituous  liquors  in  a  less  quantity  than  twenty  gallons 
at  one  time,  shall  be  deemed  to  be  a  retailer  within  the  meaning-  of  this  chapter.  The  chap- 
ter is  entitled,  of  licenses  to  retailers,  inn-keepers  and  victualiinjr  houses.  The  first  sec- 
tion of  the  chapter  defines  the  act  that  is  unlawful  if  done  without  a  license,  and  that  is,  to 
sell  any  foreign  or  domestic  distilled  spirituous  liquors.  This  being  the  act  that  is  for- 
bidden to  be  done,  of  course  for  the  doing  of  tiiis  tiie  penalty  is  incurred.  It  is  not  any 
succession  of  acts  of  a  similar  character  that  constitutes  tiie  otfencc.  The  14tli  section 
defines  who  are  retailers,  and  by  dealing  in  the  selling  the  same  is  meant  in  the  first  section 
by  the  expression  to  sell.  But  there  is  another  view  of  the  case  still  more  decisive.  The 
26th  section  of  the  same  chapter  provides  that  if  any  person  shall  be  guilty  of  more  than 
one  distinct  offence  prohibibited  in  either  of  the  three  preceding  sections,  he  may  be  prose- 
cuted and  subjected  to  the  penalties  for  all  such  distinct  oflTences  at  the  same  time.  There 
would  be  a  difficulty  in  understanding  when  a  distinct  otfence  had  been  committed,  or 
how  many  had  been  committed,  if  it  required  any  number  or  succession  of  acts  of  selling 
to  constitute  a  distinct  otfence.  The  result,  therefore,  must  be  that  the  offence  is  manifest 
by  the  proof  of  a  single  act  of  selling." 

(«)  State  V.  Mungcr,  15  Verm.  290.     In  this  case  it  was  ruled  : 

1st.  That  in  an  indictment  against  a  person  for  selling  s[)irituous  liquors  by  the  small 
measure  without  a  license,  it  is  not  necessary  that  it  should  be  averred  to  whom  they  were 
sold,  or  the  number  of  the  persons. 

2d.  That  an  averment  that  the  respondent  sold  rum,  brandy  and  gin,  is  sufficient,  with- 
out an  averment  that  they  were  spirituous  liquors. 

3d.  That  the  negation  of  license  must  be  broad  enough  to  cover  all  the  sources  from 
which  it  might  have  been  obtained. 

4th.  That  if  the  negation  of  license  to  sell  is,  as  to  quantity,  co-extensive  with  the  quan- 
tity charged  to  be  sold,  it  is  sufficient. 

5th.  That  the  general  negation  "  not  having  a  license  to  sell  said  liquors  as  aforesaid," 
relates  to  the  time  of  sale  and  not  to  the  time  of  finding  of  the  bill,  and  is  sufficient. 

6th.  It  is  not  necessary  that  the  offence  of  selling  spirituous  liquors  without  license 
should  be  charged  to  have  been  committed  with  force  and  arms.  Where  a  distinct  sale  of 
spirituous  liquors  is  alleged  to  have  been  made  on  a  day  certain,  the  count  is  not  vitiated 


408  OFFEN'CES  AGAIiVST  SOCIETY. 

gill  of  brandy  and  one  gill  of  gin  to  divers  persons,  he  the  said  C.  A. 
M.  not  having  a  license  to  sell  said  liquors  as  aforesaid,  contrary,  &.c., 
and  against,  &c.     {Conclude  as  i?i  book  1,  chap.  3), 

That  the  said  C.  A.  M.  not  having  a  license  to  sell  rum,  brandy  or 
gin  by  the  half  gill,  gill  or  half  pint,  did  on,  &.c.,  and  at  divers  other 
limes  between  the  day  last  aforesaid  and  the  time  of  this  presentment, 
sell  rum,  brandy  and  gin  by  the  gill,  half  gill  and  half  pint  at  his  the 
said  C.  A.  M.'s  store  in  Rutland  aforesaid,  to  divers  citizens  of  this 
state,  contrary,  &.C.,  and  against,  &c.  {Conclude  as  in  book  1, 
c/iajj.  3). 

Selling  liquor,  ^'C,  under  Massachusetts  Rev.  Stat.  c.  47,  s.  l.{w) 

That  C.  L.,  &c.,  at,  &c.,  on,(o)  &c.,  and  from  thence  continually  to  the 
day  of  the  making  of  this  presentment,  did  presume  to  be,  and  duritig 
all  the  time  aforesaid,  was,  in  the  dwelling  house  of  the  said  C.  L. 
there  situate,  by  her  the  said  C.  L.  then  and  there  used,  improved 
and  occupied,  a  seller  of  rum,  brandy,  gin  and  other  spirituous  liquors, 
to  be  then  and  there,  in  the  said  dwelling  house  of  hur  the  said  C.  L,, 
used,  consumed  and  drank  by  the  purchasers  thereof;  she  the  said  C. 
L.  not  being  then  and  there  duly  licensed  according  to  law,  to  be  an 
innholder  or  common  victualler,  against,  &c.  {(Conclude  as  i)i 
book  1,  chap.  3). 

Another  form  under  same  section.{x) 

The  jurors,  &c.,  do  present,  that  late  of,  &c.,  without  any 

authority  or  license  therefor  duly  had  and  obtained  according  to  law, 
did  presinne  to  be  and  was  a  common  seller  of  wine,  brandy,  rum 
and  other  spirituous  liquors  to  be  used  in  about  the  shop  of  him  the 
said  the  said  shop  being  a  building  of  said  against,  &c-., 

and  contrary,  &c.     (Conclude  as  in  book  1,  chap.  3). 

Ijy  adding  an  averment  of  sales  at  divers  times  between  tliat  and  the  finding  of  the  bill, 
but  tlie  averment  may  be  regarded  as  surplusage. 

7tli.  That  the  respondent  being  one  of  tiie  firm,  and  having  made  out  a  bill  of  the  sale 
of  goods  at  sundry  times  in  his  own  hand-writing,  upon  whicii  was  entered  tlie  sale  of 
spirituous  liquors  by  the  small  measure  at  ditVerent  times,  and  whieh  had  been  receipted 
l)y  him,  such  bill  ot'sale  was  competent  evidence  to  go  to  the  jury  to  prove  a  sale,  and  tiic 
person  to  whom  tlie  sale  was  made  need  not  be  ])rodiiced. 

(jc)  Com.  «.  Leonard,  8  Mete.  C}2'J.  Dewey  J.:  "This  indictment  may  be  sustained, 
although  It  does  not  charge,  in  direct  terms,  tliat  the  defendant  was  a  common  seller  of 
rum,  brandy,  gin  and  other  spirituous  li(]uors.  TIk;  statute  itself  (Rev.  Stat.  c.  47,  s.  1), 
(ices  not  use  tlie  words  'common  seller,'  but  tlie  legal  construction  given  to  the  statute 
lias  always  been,  that,  in  punishing  the  offence  therein  described,  the  legislature  intended 
to  punish  the  offence  of  being  a  common  seller  of  rum,  brandy,  &c. ;  Com.  u.  Odiin,  2.3 
Tick.  27.5;  Com.  v.  Pearson,  3  Mete.  441).  In  the  present  case  the  forni  of  the  indictment, 
charging  that  the  defendant,  'on  the  first  day  of  May  now  last  past,  and  from  that  day  to 
the  day  r)f  making  this  |)res('iitiricnt,  did  pr<^suinc  to  be,  and  during  all  the  time  aforesaid 
was  a  seller  of  rum,  brandy,  &.C.,'  does  sub.st^.ntially  charge  the  olfence  of  being  a  common 
seller  of  rum,  brandy,  &e." 

(o)  Where  the  ofi'encc  is  laid  in  the  te.Kt,  with  a.  continuendo,  no  evidence  can  be  received 
of  sales  prior  to  the  date  first  laid  ;  Com.  v.  Kriggs,  1 1  Mote.  Hl'i. 

(x)  <ce  C^om.  V.  Odiin,  2.'!  Pick.  27.') ;  Com.  n.  Pearson,  3  Mete.  449  ;  and  Com.  v.  Tower, 
R  Mete.  ;V27 ;  where  this  form  is  sustained.  Two  defendants,  it  seems,  may  be  joined  in 
the  same  indictment,  nor  is  it  an  objection  that  the  offence  is  averred  to  l)e  on  a  certain 
day,  "and  divers  other  times  and  days  between  that  day  and  the  taking  of  this  inquisi- 
tion ;"  Com.  V.  Tower,  8  Mete.  527. 


TIPPLING  HOUSES,  &C.  469 

Under  Rev.  Stat.  c.  47,  s.  2.{y) 

That  A.  B.  and  C.  D.  on,  &c.,  at,  &c.,  did  sell  to  one  E.  T.  R.  one 
gill  of  spirituous  liquor  to  be  used  in  and  about  their  house  there 
situate,  without  being  first  duly  licensed,  according  to  law,  as  an  inn- 
holder  or  common  victualler,  with  authority  to  sell  spirituous  liquor, 
against,  &c.,  and  contrary,  &c.    (Conclude  as  in  book  1,  chap.  3). 

Anotlier  form  under  same.{z) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  did  sell  to  one  W.  B.,  spirituous 
liquor  in  less  qua>-.;ity  than  twenty-eight  gallons,  she  the  said  A.  B. 
not  being  duly  licensed  therefor,  against,  &c.  {Conclude /is  in  book 
1,  chap.  3). 

Under  Rev.  Stat.  c.  47,  s.  2.{a) 

That  S.  C.  at,  &c.,  on,  &,c.,  did  sell  to  one  A.  B,  one  glass  of  brandy, 
to  be  by  him  the  said  A.  B.  then  and  there  used,  consumed  and  drank 
in  the  dwelling  house  of  said  S.  C.  there  situate,  he  the  said  S.  C.  not 
being  then  and  there  duly  licensed  according  to  law  to  be  an  innholder 
or  common  victualler;  against,  &c.,  and  contrary,  &c.  {Conclude  as 
in  book  1,  chap.  3). 

Another  form  under  same.{b) 

That  S.  C,  &c.,  on,  &:c.,  at,  Sec,  being  duly  licensed  as  an  innholder, 
with  authority  only  to  sell  wine,  beer,  ale,  cider  and  other  fermented 

(y)  Held  good  in  Com.  v.  White  and  another,  10  Mete.  14. 

(z)  Com.  V.  Leonard,  8  Mete.  530. 

Dewey  J. :  "  This  complaint  may  be  supported  under  the  third  section  of  c.  47  of  the 
revised  .statutes.  It  does  not  indeed  allege  that  tiie  spirituous  liquor,  sold  bv  the  defendant 
to  William  Beck,  was  not  delivered  and  earried  away  all  at  one  time;  but  that  is  imma- 
terial, where  the  quantity  sold  was  less  than  twcnfy-eight  gallons.  The  sale  of  less  than 
twenty-eight  gallons  constitutes  an  offence  within  that  section.  If  the  amount  sold  had 
exceeded  twenty-eight  gallons,  then  the  offence  would  not  be  correctly  charged,  unless 
there  were  added  the  further  allegation,  that  the  same  was  not  delivered  and  carried 
away  all  at  one  time. 

(a)  This  form  was  sustained  in  Com.  v.  Churchill,  2  Mete.  119-125,  under  Rev.  Stat. 
c.  47,  s.  2,  which  was  revived  by  stat.  of  1840,  c.  I.  The  court  declined  deciding,  how- 
ever, whether  the  indictment  would  have  been  defeated  by  the  production  b}'  the  defendant 
of  a  license  to  sell  wine,  beer,  ale,  vfcc,  though  not  to  sell  brandy,  rum  or  other  spirituous 
liquor.  Subsequently,  however,  it  was  held  that  when  such  a  license  was  granted,  the 
above  indictment  could  not  be  sustained,  and  a  form  was  suggested  by  the  court  as  being 
the  proper  one  in  such  cases,  and  which  is  given  in  the  text;  Com.  v.  Thayer,  5  Mete. 246. 

(6)  See  last  note,  and  further.  Com.  v.  Thayer,  5  .Mete.  246.  In  a  subsequent  complaint 
against  same  defendant.  Com.  v.  Thayer,  8  Mete.  523,  it  was  said  that  the  qu;iiified  license 
of  the  defendant  was  to  be  thus  pleaded,  "  he  the  said  defendant  not  being  then  and  there 
duly  licensed,  according  to  law,  to  be  an  innholder  and  common  victualler,  with  authority 
to  sell  wine,  brandy,  rum  and  other  spirituous  liquors."  "  It  was  suggested,"  says  Dewey 
J.,  "  tiiat  the  case  of  Com.  v.  Thayer,  5  Mete.  2  16,  seems  to  require  tliat  in  cases  like  the 
present,  the  indictment  or  comfilaint  should  set  forth  s|)ecially  that  the  defendant  was 
licensed  as  an  innholder  with  authority  to  sell  only  wine  and  beer,  &c.  But  that  form  of 
allegation  was  only  stated  as  one  mode  of  avoiding  the  objection  which  arose  in  that  rase, 
where  the  question  was  upon  an  indictment  alleging  that  the  defendant  'was  not  duly 
licensed  as  an  innholder.'  Such  objection  does  not  arise  here,  as  the  allegation  in  the  com- 
plaint does  negative  the  license  to  all  spirituous  liquors."  See  further,  Com.  o.  Howell,  9 
Melc.  571.  »> 

40 


470  OFFENCES  AGAINST  SOCIETY. 

liquors,  did,  in  violation  of  law,  without  any  authority  or  license 
therefor  duly  had  and  obtained  according  to  law,  sell  to  one  A.  B. 
one  glass  of  brandy  to  be  by  him  the  said  A.  B.  then  and  there  used, 
consumed  and  drank  in  the  dwelling  house  of  said  S.  C.  there  situ- 
ated ;  against,  &c.,  and  contrary,  &c.  {Conclude  as  in  book  1,  chajj. 
3). 

Another  form  under  same. 

That  A.  B.  of  said  Boston,  yeoman,  on,  &c.,  at,  &c.,  without  being 
duly  licensed  therefor  as  an  innholder  or  common  victualler  according 
to  the  provisions  of  law  and  the  provisions  of  the  forty-seventh  chap- 
ter of  the  revised  statutes  of  said  commonwealth,  did  then  and  there 
sell  a  certain  quantity,  to  wit,  half  of  a  gill  of  spirituous  liquor  to  a 
certain  person  whose  name  is  C.  D.,  to  be  used  and  drank  in  and 
about  his  the  said  A.  B.'s  building,  salesroom  and  place  of  business 
used  as  a  shop,  there  situate,  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 

Another  form,  under  Rev.  Stats,  c.  47,  s.  2,  where  defendant  is  licensed 
to  sell  loine,  ^c.{c) 

That  A.  C.  S,,  &c.,  on,  &c.,  at,  &.c,,  did  sell  to  one  A.  B.  an  half 
gill  of  spirituous  liquor,  to  be  by  him  the  said  A.  B.  then  and  there  used 
about  the  dwelling  house  of  the  said  A.  C.  S.  there  situate,  he  the 
said  A.  C.  S.  not  being  first  duly  licensed,  according  to  law,  as  an 
innholder  or  common  victualler,  with  authority  to  sell  spirituous 
liquors,  against,  &c.     {Conclude  as  iii  book  1,  chap.  3). 

Another  form  under  same.(d) 

That  A.  B.,  &o.,  at,  &c.,  on,  &c.,  "did  presume  to  be  a  seller  of 
wine,  brandy,  rum  and  other  spirituous  liquors,  to  be  used  in  and 

(c)  In  Com.  V.  Thayer,  8  Mctc.  523,  as  was  just  said,  a  form  very  similar  to  this  was 
sanctioned,  and  in  Corn.  ».  Howell,  9  Mete.  571,  a  motion  in  arrest  of"  judgment  against 
an  indii  tnicnt  in  which  the  license  was  pleaded  as  it  is  in  tiic  text,  was  discharged. 

(d)  ("om.  V.  Stowell,  9  Mete.  56f).  lOach  of  the  other  counts  omitted  the  allegation  that 
the  defendant  presumed  to  he  a  seller  of  wine,  hrandy,  &,c.,  without  being  first  licensed  as 
an  innholder,  &,c.,  and  alleged  a  sale  to  an  individual,  in  the  form  adopted  in  the  latter 
part  of  the  first  count. 

Dewey  J.:  "  1.  It  is  objected  to  the  first  coimt  in  the  indictment,  that  it  is  bad  for  du- 
plicity. The  argument  of  tin;  counsel  for  the  defendant  assumes  that  it  charges  two  dis- 
tinct offences,  arising  under  difl'erent  sections,  viz.  ss.  1  and  2  of  c.  47  of  the  Kev.  Slats. 
The  answ(  r  to  this  objection  is,  that  no  offence  is  charged  upon  the  first  section.  That 
offence  is  that  of  jjcing  a  common  seller  of  brandy,  rum,  &c. ;  and  a  proper  indictment 
upon  this  section,  for  the  ofiencc  of  selling  spirituous  li(|uors,  should  contain  the  allegation 
that  the  party  was  such  common  seller.  It  is  not  indeed  absolutely  necessary  to  use  the 
word  'common,'  as  prefixed  to  seller,  if  other  ecjuivalent  words  are  introduced,  as  was  held 
in  Corn.  v.  Leonard,  8  Mete.  529,  where  the  allegation  in  the  indictment,  that  the  defend, 
ant,  from  a  certain  day  stated,  on  divers  days  and  times  to  the  time  of  finding  the  indict- 
ment, was  a  seller  of  spirituous  liquors,  &,c.,  was  held  sufficiently  to  set  forth  the  offence 
under  the  first  seetion.  IJut  it  seems  to  us  that  a  mere  allegation  that  the  defendant,  on  a 
certain  day  named,  was  a  seller,  &,c.,  is  not  suffici<nt  to  charge  the  offence  of  being  a 
common  s(  Her.  There  is,  therefore,  no  offence  charged  in  this  indictment,  upon  the  first 
•ection  of  the  statute." 

"  3.  Il  is  next  insisted,  that  the  indictment  is  bad,  because  it  does  not  allege  that  the 


TIPPLING  HOUIES,  &C.  471 

about  Ins  dwelling  then  and  there  situate,  without  being  first  licensed, 
according  to  law,  as  an  innholder  or  common  victualler,  with  autho- 
rity to  sell  spirituous  liquors;  and  did  then  and  there  sell  to  one  T. 
L.  C,  one-half  gill  of  spirituous  liquor,  to  be  used  in  and  about  his 
dwelling  house  then  and  there  situate,  without  being  first  duly 
licensed,  according  to  law,  as  an  innholder  or  common  victualler, 
with  authority  to  sell  spirituous  liquors,  against,"  Sic.  {Conclude  as 
in  book  1,  chap  3). 

Another  form  under  same.{e) 

That  A.  B.,  at,  &c.,  on,  &c.,  did  sell  to  one  one  glass  of 

brandy,  to  be  by  him  the  said  then  and  there  used,  consumed 

and  drank  in  the  dwelling  house  there  situate  of  him  the  said  S.,  he 
the  said  S.  not  being  then  and  there  duly  licensed  according  to  law  to 
be  an  innholder  or  common  victualler;  against,  &c.,  and  contrary, 
&c.     (^Conclude  as  in  book  1,  chap.  3). 

Another  form  under  same.{f) 

That  R.  T.  and  C.  L.,  both  of,  &c.,  at,  &.C.,  on,  &c.,  and  on  divers 
other  days  and  times  between  that  day  and  the  day  of  taking  this  in- 

liquor  was  used  in  the  house  of  the  defendant,  but,  on  the  contrary,  that  it  alleges  the  use 
of  the  same  to  have  been  in  the  house  of  Thomas  L.  Clark,  the  purchaser.  By  a  strict 
g'raMiniatical  construciion,  the  allegation,  'did  then  and  there  sell  to  one  Thomas  L.Clark, 
one-half  gill  of  spirituous  liquor,  to  he  used  in  and  about  his  house  then  and  there  situate, 
without  being  first  duly  licensed,'  &c.,  would  authorize  the  words  '  his  house'  to  be  taken 
to  refer  to  the  liousc  of  Clark,  the  vendee.  But  we  do  not  feel  bound  to  this  very  strict 
grammatical  reading  of  this  clause  in  the  indictment. 

"  We  may  resort  to  the  entire  language  of  the  whole  paragraph ;  and  if  the  charge  be 
plainly  indicated,  and  so  set  forth  as  to  leave  no  real  uncertainty  as  to  the  nature  of  it,  it 
may  be  held  good.  See  21  Pick.  521.  Looking  at  the  whole  count,  we  think  it  suffi- 
ciently alleges  the  use  of  the  liquor  in  the  house  of  the  defendant. 

"4.  The  remaining  inquiry  is,  whether  there  be  any  proper  allegation  that  the  defend- 
ant was  not  duly  licensed  as  an  innholder  or  common  victualler.  So  far  as  there  is  any 
question  of  uncertainty  as  to  tfie  person  alleged  not  to  be  licensed,  the  views  already  pre- 
sented on  the  preceding  point  apply,  and  fully  meet  this  objection. 

"The  other  specification  of  objection  under  this  head,  viz.  that  the  form  of  the  allega- 
tion should  have  been,  that  the  defendant  was  licensed  as  an  innholder,  but  with  the  right 
of  vending  only  ale,  beer,  &c.,  as  was  suggested  in  Com.  v.  Thayer,  5  Mete.  247,  is  an- 
swered by  the  decision  in  Com,  v.  Thayer,  8  Mete.  523,  where  other  equivalent  words 
were  held  to  be  sufficient,  and  an  allegation  very  similar  to  the  present  was  decided  to  be 
good. 

"All  the  objections,  upon  which  the  motion  in  arrest  of  judgment  has  been  argued,  are 
overruled." 

(e)  This  count  was  sustained  in  Com.  ».  Churchill,  2  Mete.  118,  119. 

(/)  Com.  V.  Tower,  8  Mete.  527.  The  defendants  moved  that  judgment  be  arrested 
from  the  insufficiency  of  the  indictment. 

Dewey  .T.  :  "  L  It  is  no  valid  objection  to  this  indictment,  that  it  includes  two  persons. 
The  acts  therein  charged,  as  constituting  the  offijnce,  may  well  be  done  bj'  two  or  more 
jointly  ;  and  whenever  several  may  join  in  the  otfcnce,  they  may  properly  be  united  in  the 
same  indictment. 

"2.  The  objection  that  this  indictment  is  bad  because  it  avers  the  offence  to  have  been 
committed  'on  the  first  day  of  May  last  past,  and  on  divers  other  days  and  times  between 
that  day  and  the  day  of  taking  tiiis  inquisition,  cannot  avail.  It  is  no  objection  that  such 
continuous  charge  is  made,  and  it  accords  with  the  forms  usually  adopted.  Such  was  the 
case  in  Com.  v.  Odlin,  23  Pick.  275  ;  and  it  seems  well  adapted  to  the  description  of  the 
offence. 

"3.  It  is  then  contended  that  the  negative  averment  required  to  constitute  a  good  in- 


472  OFFENCES  AGAINST  SOCIETY. 

quisition,  did  presume  to  be,  and  were  common  sellers  of  wine, 
brandy,  rum  and  other  spirituous  liquor,  to  be  used  and  drank  in  the 
dwelling  house  of  them  the  said  R.  and  C.  there  situate,  and  by  them 
the  said  R.  and  C.  then  and  there  actually  used  and  occupied,  with- 
out being  first  duly  licensed  therefor  according  to  law,  against,  &c. 
[Conclude  as  in  book  1,  chap.  3). 

Sellivg  liquor  without  license,  under  Massachusetts  Revised  Statutes,  c. 
47,  s.  3.{g) 

That,  &c.,  on,  &c.,  at,  &c.,  without  any  authority  or  license  therefor 
duly  had  and  obtained  according  to  law,  did  presume  to  be,  and  was 
a  retailer  of  spirituous  liquors  in  less  quantity  than  twenty-eight  gal- 
lons, and  that  delivered  and  carried  away  all  at  one  time,  and  did 
then  and  there  sell  and  retail  two  quarts  of  spirituous  liquor  to  L.  J., 
against,  &c.,  and  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Another  form  under  same.{li) 

That  A.  B.,  on,  &c.,  at,  &c.,  and  there  on  divers  other  days  and 
times,  between  the  first  day  of  January  last  and  the  first  Monday  of 

dictmcnt  for  the  offence,  viz.  tlie  allegation  that  the  party  was  not  duly  licensed  to  make 
such  sale,  was  not  properly  set  forth  in  this  indictment.  The  argument  assumes  that  the 
allegation,  '  without  being  first  duly  licensed  therefor,'  must  by  strict  grammatical  rules,  ap- 
ply to  the  next  antecedent  sentence,  and  therefore  only  qualifies  the  allegation  that  the 
defendants  occupied  a  certain  dwelling  house,  and  does  not  negative  their  authority  to  sell 
spirituous  liquor.  This  is  a  reading  of  the  indictment  which  we  cannot  sanction.  The 
dwelling  house  is  introduced  as  the  itlacc  where  the  liquor  was  used,  and  the  averment, 
'without  being  first  duly  licensed  therefor,'  clearly  refers  to  the  sale  of  the  liquors,  and  not 
to  the  place  where  they  were  used.     See  the  State  v.  Jernigan,  3  Murph.  19. 

"4.  It  is  then  said,  that  if  this  negative  averment  be  not  insutficitnt  for  the  reasons  last 
stated,  it  is  defective,  inasmuch  as  it  only  negatives  a  joint  license  to  the  two,  and  that  this 
would  be  true,  altiioiigh  one  of  the  defendants  had  been  duly  licensed.  Now,  it  seems 
quite  clear  that  this  is  only  a  formal  objeclion  as  upon  proof  of  a  license  to  either  of  the 
detcndants;  such  license  would  constitute,  as  to  that  defendant,  a  good  defence  to  this  in- 
dictment. Further,  we  think  that  although  it  would  have  been  more  technically  correct 
to  have  alleged  that  the  defendants  had  not,  nor  either  of  them,  any  license  to  sell  spiritu- 
ous liquors,  yet  the  allegation,  in  its  present  form,  may  be  well  taken  to  apply  to  both,  and 
tiiat  individually  and  severally,  as  well  as  jointly." 

ig)  See  Goodhue  v.  Corn.,  5  Mete.  5.53,  where  this  form  was  held  good.  In  Com.  v. 
Kimball,  7  Mete.  304,  an  indictment  under  the  same  section,  without  any  averment  of  the 
sale  of  a  sj)ccific  quantity  to  A.  IJ.,  but  with  the  charge  inserted,  "did  presume  to  be  and 
was  a  retailer  to  one  A.  D.  of  spirituous  liquors,''  &c.,  was  souicwhat  querulously  sustained, 
It  being  said,  "the  expression  is  not  one  which  is  the  bc^t  adapted  to  state  this  offence 
with  the  greatest  precision  and  clearness,  nor  is  it  according  to  approved  forms.  It  is  not, 
however,  such  a  defect  as  requires  us  to  quash  the  indictment  as  insufficient."  After- 
wards,  in  Com.  v.  Simpson,  U  JVIctc.  13H,  it  wns  determined  that  when  the  first  segment  of 
the  indictment,  charging  the  del'endant  with  being  a  retailer  of  spirituous  liquors,  &c., 
was  badly  pleaded,  it  might  be  stricken  out  as  sur  plusage,  and  judgment  entered  upon  the 
aveiment  of  a  single  illegal  sale  contained  iti  the  latter  branch  of  the  count.  Sec  also  Com. 
V.  Pray,  13  Pick.  .35!);  Com.  v.  Odlin,  23  Pick.  275.' 

(/()  Com.  V.  Dryden,  9  Mete.  137. 

The  defendant,  after  nolo  contendere  entered,  moved  in  arrest  of  judgment,  because  the 
indictment  did  not  charge  the  time  when  he  sold  spirituous  li(iuor  in  a  less  quantity  than 
twenty  eight  gallons,  «Ste.,  with  the  certainty  and  jirccision  required  by  law,  so  us  to  en- 
able the  court  to  render  judgment  of  guilty,  or  so  as  to  apprise  him  of  the  precise  offence 
>A'  which  he  stood  charged,  and  enable  him  to  prepare  for  his  delince.  This  motion  was 
oveiruled  by  the  Municipal  Court,  and  the  defendant  thereupon  alleged  exceptions. 

Di  wey  J. :  "  Enough  is  set  forth  in  the  indictment  to  coiifctilute  the  offence  of  a  single 


TIPPLING  HOUSES,  &.C.  473 

May,  did  presume  to  be  and  was  a  retailer  and  seller  of  wine,  nun, 
brandy  and  other  spirituous  liquor  in  a  less  quantity  than  twcniy- 
eight  gallons,  and  that  delivered  and  carried  away  all  at  one  time  ; 
he  the  said  B.  then  and  there  not  being  duly  first  licensed  as  a  retailer 
of  wine  and  spirits,  as  is  provided  by  law  and  in  the  forty-seventh 
chapter  of  the  revised  statutes  of  said  commonwealth  ;  and  he  did 
then  and  there  sell  and  retail  spirituous  liquor  to  a  person  whose 
name  is  J.  C,  in  a  certain  quantity  less  than  twenty-eight  gallons, 
and  that  delivered  and  carried  away  at  one  time,  to  wit,  in  the  quan- 
tity of  half  a  pint,  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Another  farm  under  same. 

That  A.  B.,  of,  &c.,  on,  &-c.,  at,  &c.,  and  there  on  divers  other  days 
and  times  between  the  first  day  of  last  and  the  said  first  Mon- 

day of  did  presume  to  be  and  was  a  retailer  and  seller  of  wine, 

brandy,  rum  and  other  spirituous  liquors  in  a  less  quantity  than 
twenty-eight  gallons,  and  that  delivered  and  carried  away  all  at  one 
time;  he  the  said  then  and  there  not  being  duly  first  licensed  as 

a  retailer  of  wine  and  spirits  as  is  provided  by  law  and  in  the  forty- 
seventh  cha[)ter  of  the  revised  statutes  of  said  commonwealth,  and  he 
did  then  and  there  sell  and  retail  wine  and  spirituous  liquors  to  a  per- 
son and  to  persons  whose  names  to  said  jurors  are  not  yet  known,  in 
a  certain  quantity  less  than  twenty-eight  gallons,  and  that  delivered 
and  carried  away  at  one  time,  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 

Violation  of  license  laivs  in  Rhode  Island. 

That  A.  B,,  of  Warren,  in  the  aforesaid  County  of  Bristol,  trader, 
alias  grocer,  alias  merchant,  between  the  first  day  of  June  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and  f )rty-five  and 
the  tenth  day  of  November  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  forty-five,  and  within  the  said  times,  with  force  and 
arms,  at  Warren  aforesaid  in  the  aforesaid  County  of  Bristol,  did  sell 
in  the  possessions  of  him  the  said  A.  B.,  to  wit,  in  a  certain 
shop,  situate  in  the  town  of  Warren  in  the  aforesaid  County  of  Bristol, 
strong  liquor,  to  wit,  rum,  by  retail  in  a  less  quantity  than  ten  gallons, 
without  license  first  had  and  obtained  from  the  town  council  of  the 
said  town  of  Warren,  against,  <S:c.,  and  against,  &c.  (Conclude  as  in 
book  1,  chap.  3). 

And  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  further 
present,  that  the  said  A.  B.,  between  the  said  first  day  of  June  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  forty-five  and  the 
said  tenth  day  of  November  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  forty-five,  on  divers  Sundays  within  said  last  men- 
act  of  Folliujf  spirituous  liquor  witlioul  bpinij-  duly  licensed,  if  we  strike  out  all  that  part 
which  cliirorcs  srcnerally  th.it  tho  di-fc:uhnt,  'on  divers  diys  and  times  between  the  first 
day  of  J  inu:iry  and  the  first  Mond  ly  of  VI, ly,  was  a  retailer  and  seller  of  wine,  nun,  brandy 
and  other  spiritnou-j  liquors.'  This,  we  tliink,  may  be  stricken  out,  upon  the  authority  of 
Com.  V.  Pray,  13  i^ick.  33d,  and  the  People  v.  Adams,  17  Wend.  475." 

Exceptiona  overruled. 

40* 


471  OFFENCES   AGAIXST  SOCIETY. 

tioned  times,  with  force  and  arms,  at  Warren  aforesaid  in  the  afore- 
said County  of  Bristol,  did  sell  and  sutler  to  be  sold  in  his  possessions 
there  situate,  ale,  wine  and  strong  liquors  by  retail,  in  a  less  quantity 
than  ten  gallons,  without  license  first  had  and  obtained  from  the  town 
council  of  the  said  town  of  Warren,  against,  &c.,  and  against,  &c. 
{^Conclude  as  in  book  \,  chap.  3). 

Same  in  JVeiv  York.{i) 

That  J.  A.,  at,  &c.,  on,  &c.,  and  on  divers  other  days  and  times 
between  that  day  and  the  day  of  the  finding  of  this  indictment,  to 
wit,  &c.,  did  sell  by  retail  to  divers  citizens  of  this  state,  and  to  divers 
persons  to  the  jurors  aforesaid  unknown,  and  did  deliver  in  pursuance 
of  such  sale  to  the  said  divers  citizens,  and  the  said  divers  persons  to 
tlie  jurors  aforesaid  unknown,  strong  and  spirituous  liquors  and  wines, 
to  wit,  three  gills  of  brandy,  three  gills  of  rum,  three  gills  of  gin,  three 
gills  of  whisky,  three  gills  of  cordial,  three  gills  of"  bitters,  three  gills 
of  wine,  to  be  drank  in  the  house,  store,  shop  and  grocery  of  the  said 
J.  A.,  in  the  city  of  Utica  aforesaid,  without  having  obtained  a  license 
therefor  as  a  tavern-keeper,  and  without  being  in  any  other  way  autho- 
rized, against,  &c.     [Lonclude  as  in  book  1,  chap.  3). 

Same  in  JVeiv  Jersey. 

That  A.  B.,  late  of,  &c..,  on,  &c.,  at,  &c.,  unlawfully  did  sell  by 
retail,  and  cause  and  knowingly  permit  to  be  sold  to  C.  D.  certain 
ardent  spirits,  tlie  said  ardent  spirits  then  and  there  not  having  been 
compounded  and  intended  to  be  used  as  medicine,  by  less  measure 
than  one  quart,  to  wit,  one  without  license  for  that  purpose 

first  had  and  obtained  in  the  manner  prescribed  by  the  statutes  in 
that  case  made  and  provided,  to  the  evil  example,  &c.,  contrary,  &.c., 
and  against,  &c.     {^Conclude  as  in  book  1,  chap.  3). 

That  the  said  A.  B.,  on,  &c.,  at,  &c.,  unlawfully  did  sell  and  cause 
and  knowingly  permit  to  be  sold  to  the  said  C.  D.,  a  certain  composi- 
tion, of  which  ardent  spirits  did  then  and  there  form  the  chief  ingre- 
dient, the  said  composition  then  and  there  not  having  been  com- 
pounded and  intended  to  be  used  as  medicine,  by  less  measure  than 
one  quart,  to  wit,  one  without  license  for  that  purpose  first  had 

and  obtained  in  the  manner  prescribed  by  the  statutes  in  that  case 
made  and  provided,  to  the  evil  example,  &c.,  contrary,  &c.,  and 
against,  &c.     [Conclude  as  in  book  1,  chaji.  3). 

That  the  said  A.  B.,  on,  &c.,  at,  &.C.,  unlawfully  did  sell  and  cause 
and  knowingly  permit  to  be  sold  to  the  said  C.  D.,  certain  mixed 
liquors,  the  said  mixed  liquors  then  and  there  being  ardent  spirits,  by 
less  measure  than  live  gallons,  to  wit,  without  license  for  that 

purpose  first  had  and  obtained  in  the  manner  prescribed  by  the' 
statutes  in  that  case  made  and  provided,  to  the  evil  example,  &c., 
contrary,  &c,,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

(t)  Tli'iB  form  is  found  in  People  v.  Ad.ims,  17  Wcntl.  475.  Tlic  contiinjeiido  and  llie 
sn|ic-rHuou8  alUgations  of  rum,  &.c.,  at  wliicii  tiic  proof  dots  not  liit,  may  be  discharged  as 
tturphiaiige. 


TIPPLING   HOUSES,  &C.  475 

Same  in  Pennsyhania{j) 

That  J.  B.,  late  of,  &c.,on,  &c.,  and  at  divers  other  days  and  times, 
as  well  before  as  afterwards,  at,  &c.,  did  keep  a  tippling  house,  with- 

U)  Com.  V.  Baird,  4  S.  &.  R.  141. 

Duncan  J.:  "  The  motion  in  arrest  of  judg-ment  will  be  first  disposed  of,  in  doing  wliich 
it  will  be  proper  to  consider  the  various  legislative  provisions  on  tliis  subject.  Tlie  act  of 
1710,  1  Smith's  Laws  73,  provides  that  no  person,  without  license  from  the  justices,  siiall 
keep  a  public  house  of  entertainment,  tipplin<r  house  or  dram  shoj),  under  the  penalty  of 
five  pounds,  one-half  thereof  to  the  governor,  and  the  otiier  half  to  the  use  of  the  poor  of 
the  city  or  township  where  the  offonce  shall  have  been  committed.  By  a  supplement  to 
this  act,  passed  26th  August,  1721,  1  Smith's  Laws  127,  it  is  enacted,  that  no  person  not 
qualified  as  by  the  above  recited  act,  shall  presume  to  sell  or  barter  with  or  deliver,  any 
wine,  rum,  ifcc,  which  shall  be  used  or  drank  in  their  houses,  yards  or  sheds,  or  shall  be  so 
used  or  drank  in  any  shelter,  place  or  wood,  near  or  adjacent  to  them,  with  their  privity 
or  consent,  by  any  companies  of  negroes,  servants  or  others,  or  retail  or  sell  to  any  person 
or  persons  whatsoever,  any  rum,  brandy  or  other  spirits  by  less  quantity  or  measure  than 
one  quart,  nor  any  wine  by  any  less  measure  or  quantity  than  one  gallon,  nor  any  beer, 
ale  or  cider,  by  any  less  quantity  than  two  gallons,  and  the  same  liquors  respectively  de- 
livered to  one  person  and  at  one  time,  under  the  same  penalty  as  is  prescribed  by  the  act 
of  1710.  By  the  act  of  19th  March,  1783,  3  Smith's  Laws  65,  it  is  provided,  that  if  any 
person  or  persons  shall  hereafter  retail  and  sell  less  than  one  quart  of  rum,  wine,  brandy 
or  other  spirits,  to  be  delivered  at  one  time  to  one  person,  without  having  first  obtained  a 
license  agreeably  to  law  for  that  purpose,  he  or  they  shall  forfeit  and  pay  for  every  such 
offence  the  penalty  of  ten  pounds. 

"The  most  solid  objection  to  this  indictmerit  is  the  omission  to  state,  that  the  liquor 
was  delivered  at  one  time  and  to  one  person;  and  I  own  that  if  this  were  res  inlegra, 
it  would  be  difficult  to  answer.  But  it  will  be  observed,  that  the  same  words  are  used 
in  the  act  of  1721,  'and  the  same  liquors  respectively  delivered  to  one  person  and  at 
onetime;'  and  in  the  act  of  1783, 'shall  sell  or  retail  less  than  one  quart,  and  to  be 
delivered  at  one  time  and  to  one  person.'  Tiie  only  alteration  in  the  act  of  1817  is, 
that  in  the  city  and  county  of  Pliiladelphi.i  the  offence  is  to  consist  of  selling  less  than 
one  pint,  instead  of  one  quart,  the  penalty  is  increased,  and  in  the  distribution  of  the 
penalty.  Keeping  a  tippling  house  is  still  an  offence.  Keeping  a  tippling  house  in 
the  city  and  county  of  Philadelphia,  the  overt  act  being  the  retailing  of  liquor  by  less 
measure  than  one  pint,  is  punishable  under  this  statute.  This  form  of  indictment  having 
prevailed  for  eighty  years,  been  adopted  by  successive  attorney-generals,  tlie  provisicms  of 
the  several  acts  being  nearly  if  not  altogether  in  the  same  words,  the  court  will  not  say, 
that  all  the  prosecutions  during  that  long  period  of  time  are  erroneous :  for  it  is  admitted 
tliat  this  has  been  the  only  fijrm.  A  continued  and  cotemporaneous  practice,  under  a 
statute,  in  a  matter  merely  formal,  ought  not  lightly  to  be  disturbed.  The  court  have  less 
difficulty  in  deciding  the  remaining  points.  The  only  remedy  is  by  indictment.  The 
keeping  a  tippling  house  is  an  indictable  offence.  The  general  prohibition,  under  penalty, 
to  sell  liquors  by  less  measure  than  one  quirt  would,  it  is  admitted,  render  the  act  indict- 
able, unless  some  particular  mode  of  recovering  the  penalty  is  prescribed;  and  the  remedy 
by  action  is  inferred  from  the  use  of  the  words  'costs  of  suit,'  in  the  second  section.  This 
appears  a  forced  inference,  not  warranted  by  a  just  construction  of  the  whole  act ;  for  how 
in  a  qui  tarn  action  could  the  court  sentence  the  offender,  if  convicted,  to  pay  the  penalty 
or  to  the  [)enilciitiary  house,  to  be  ke|)t  at  hard  labour?  As  to  the  offence  being  laid  in 
the  city,  if  it  could  not  be  so  laiil,  it  would  follow,  that  where  the  retailing  was  in  the 
county  it  would  be  exempted  from  punishment;  for  though  the  city  might  be  in  the 
county,  the  county  could  not  be  in  the  city.  The  city  and  county  are  to  be  construed 
disjunctively.  Such  is  the  manifest  declaration  of  the  legislature;  for  in  the  distribution 
of  the  penalty,  one-half  is  to  enure  to  the  guardians  of  the  poor  of  the  township  or  district 
where  the  offence  shall  occur.  Any  other  construction  would  render  the  act  insensible 
and  void  ;  nor  is  there  any  such  inflexible  rule  in  the  construction  of  penal  statutes,  that 
you  must  abide  by  the  very  letter;  for  in  the  construction  of  penal  statutes  the  strict 
meaning  of  the  expressions  has  been  departed  from,  in  order  to  comply  with  the  manifest 
spirit  and  intention  of  the  law;  1  Binn.  277.  Nor  does  regard  to  criminals  require  such 
construction  of  the  words  perhaps  not  absolutely  clear,  as  would  tend  to  destroy  and  evade 
the  very  intention  and  meaning  of  the  act.  It  is  not  unfrequent  in  the  construction  of 
statutes,  to  take  the  disjunctive  as  a  copulative  and  the  copulative  as  a  disjunctive,  in  order 
to  make  the  words  stand  with  reason  and  the  intent  of  the  framers  of  the  law;  Plow. 
S-ffi  ;  6  Cranr-h  7.  Thev  are  so  to  he  considered  here.  An  act  declaring  tliat  a  particular 
act  committed  in  the  counties  of  Phibdclphiu  and  Bucks,  should  be  punished  iu  a  cerlaio 


^76  OFFENCES  AGAINST  SOCIETY. 

out  any  license  so  to  do  first  had  and  obtained  according  to  law,  and 
tlien  and  there  without  such  license,  connnonly  and  pubhcly  did  sell 
and  utter,  and  cause  to  be  sold  and  uttered  to  sundry  persons  divers 
quantities  of  rum,  brandy  and  whisky  and  other  spirituous  liquors, 
by  less  measure  than  one  pint,  contrary,  &c.,  and  against,  &c.  (^Con- 
clude as  in  book  1,  chap.  3). 

Another  form  for  same,  being  that  used  in  Philadelphia. 

That  A.  B.,  late  of,  &c.,  on,  &c.,  at,  &c.,  did  sell  and  retail,  and 
cause  to  be  sold  and  retailed,  less  than  one  quart  of  rum,  wine, 
brandy  and  other  spirituous  or  vinous  liquors,  then  and  there  deli- 
vered at  one  time  and  to  one  person,  and  to  more  than  one  person, 
without  having  first  obtained  license  agreeably  to  law  for  that  pur- 
pose, contrary  &c.,  and  against,  &c.    {^Conclude  as  in  book  1,  chajj.  3). 

Same  in  Virginia.{k) 

That  W.  T.,  late  of,  &c.,  on,  &c.,  unlawfully  and  without  then 
having  a  license  therefor  according  to  law,  at  the  store  of  said  W,  T., 
in  the  County  of  Wood,  and  within  the  jurisdiction  of  the  County 
Court  of  said  county,  did  sell  by  retail,  whisky,  brandy  and  other 
liquors  to  the  jurors  unknown,  and  mixtures  thereof,  to  J.  N.,  to  be 
drank  at  the  said  place  where  sold  as  aforesaid,  contrary,  &.c.  [Con- 
elude  as  in  book  1,  chap.  3). 

Same  in  North  Carolina. 

That  A.  B.,  late  of,  &c.,  at,  &c.,  on,  &c.,  and  on  other  days  both 
before  and  since  that  day  up  to  the  taking  of  this  inquisition,  unlaw- 
fully and  wilfully  did  sell  and  retail  to  one  C.  D.,  and  to  other  persons 
10  the  jurors  unknown,  a  quantity  of  spirituous  liquors  by  the  small 
measure,  viz.  by  a  rneasme  less  than  one  quart,  he  the  said  A;  B. 
having  there  and  then  no  license  so  to  sell  and  retail,  contrary,  &.C., 
and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Same  in  Alabama. 

That  A.  B.,  late  of,  &c.,  on,  &c.,  in  the  county  aforesaid,  did  sell 
spirituous  liquors,  to  wit,  rum,  brandy  and  whisky  in  less  quantity 
than  one  quart,  without  license,  to  one  C.  U.,  and  to  divers  other  per- 
sons whose  names  are  to  the  jurors  aforesaid  unknown,  contrary,  &c., 
and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

And  the  jurors  aforesaid,  uj)on  tlieir  oath  aforesaid,  do  further  pre- 
sent, that  said  A.  B.,  on  the  day  and  year  aforesaid,  in  the  county 
aforesaid,  did  sell  ardent  spirits,  to  wit,  rum,  brandy  and  whisky  in 
quantities  of  one  quart  by  the  quart,  without  license,  to  one  C.  D.,  and 
to  divers  other  persons  whose  names  are  to  the  jurors  aforesaid  un- 
known ;  and  that  the  said  rum,  brandy  and  whisky  was  then  and 

rrmnner,  necessarily  means  in  cither  county,  for  it  could  not  be  committed  in  both  ;  it  des- 
cribes a  ci-rt.-iin  district  consislinir  of  two  counties  ;  if  not  so  corisiderid,  tiie  ofleiice  never 
could  be  cotiimilted;   it  could  not  be  coinmilled  in  botii  counties." 
{k)  See  'I'ell'l  v.  Cum.,  B  Leiyh  't2i. 


TIPPLING  HOUSES,  &C.  477 

there  drank  and  consumed  on  the  premises  of  him  the  said  A.  B., 
contrary,  &c.,  and  against,  &c.     [Conclude  us  in  book  1,  chap.  3). 

Same  in  Kenluclcy.(l) 

That  A.  B.,  on,  &c.,  at,  &c.,  did  keep  a  tippHng  house  by  then  and 
there  selling,  by  the  small  and  by  retail  in  said  tippling  house,  divers 
quantities  of  spirituous  liquors,  to  wit,  whisky,  brandy,  rum,  gin, 
wine,  &c.,  to  divers  persons  to  the  jurors  unknown,  and  by  then  and 
there  permitting  the  same  to  be  drank  in  said  tippling  house,  he  the 
said  A.  B.  not  then  and  there  being  a  licensed  tavern-keeper,  &c. 

'  '  Same  in  Tennessee.{m) 

That  D.  S,,1ate  of,  &c.,  on,  &c.,  unlawfully  did  keep  a  tippling 
house,  and  then  and  there  did  vend  and  retail  spirituous  liquors  in 
less  quantities  than  one  quart,  and  by  the  quart,  intended  to  be  drank 
in  the  premises,  against,  &c.,  and  against,&c.  {Conclude  as  in  book 
\,  chajJ.  3). 

Same  in  Mississippi. 

That  on,  &c..  A,  B.,  &c.,  at,  &c.,  did  then  and  there  unlawfully  sell 
and  retail  vinous  and  spirituous  liquors,  to  wit,  wine,  rum,  gin, 
brandy,  whisky,  ale  and  porter,  in  a  less  quantity  thaji  one  gallon,  to 
one  C.  D.,  and  to  other  persons  to  the  jurors  aforesaid  unknown,  con- 
trary, &c.,  and  against,  &c.     (Conclude  as  in  book  1,  chap.  3). 

That  on,  &c.,  A.  B.  being  then  and  there  a  tavern-keeper  and  inn- 
keeper, with  tbrce  and  arms  at  the  county  of  aforesaid,  did  then 
and  there  unlawfully,  gratuitously  and  without  special  charge  there- 
for, otl'er,  give  and  deliver  vinous  and  spirituous  liquors,  to  wit,  wine, 
rum,  gin,  brandy,  whisky,  ale  and  porter,  in  a  less  quantity  than  one 
gallon,  to  one  J.  K.,  and  to  other  persons  to  the  jurors  aforesaid  un- 
known ;  which  said  J.  K.  and  which  said  other  persons,  were  then 

(Z)  Oversliiiie  v.  Com.,  2  B.  Mon.  314. 

"  The  indictment,"  said  tlie  court,  "  with  sufficient  certainty,  charges  those  acts  which 
constitute  keeping  a  tipphng  house.  It  not  only  charges  the  selling  spirituous  Hquors  by 
retail,  but  also  the  permitting  tlie  same  to  he  drank  in  the  house,  and  in  tliis  latter  specifi- 
cation, ditrcrs  from  the  case  of  Woods,  &,c.  v.  Com.,  (I  B.  Mon.  74),  in  which  the  selling 
by  retail  only,  was  specified.  And  if  it  were  conceded  that  the  offence  charged  is  one  for 
which  a  presentment  niight  be  maintained,  it  would  not  follow  that  an  indictment  would 
not  also  be  good.  An  indictment  embraces  all  the  requisites  of  a  good  presentment,  and 
even  more,  namely,  the  signature  of  the  attorney  for  tiie  commonwealth,  whicli  cannot 
render  it  as  bad  as  a  presentment.  Nor  can  the  fact  tiiat  an  indictment  has  been  found 
for  an  ofTence  for  which  a  presentment  would  lie,  prevent  the  court  from  assessing  the  fine 
without  the  intei-vention  of  a  jury  in  any  case  in  which  he  could  assess  it  upon  a  present- 
ment. Nor  is  the  objection  tliat  the  foreman  of  the  grand  jury  has  signed  the  indictment 
under  the  words 'a  true  bill,'  endorsed  on  the  same,  sustainable.  The  statute  of  1814 
(Stat.  Law  Isl,  541),  according  to  its  grammatical  construction,  requires  indictments  as 
well  as  presentments,  to  be  signed  by  the  foreman;  it  does  not  direct  where  the  signature 
is  to  be  placed  ;  and  tiiough  it  may  be  implied  that  it  was  intended  to  be  placed  at  the  foot 
of  the  |)rescntment  or  indictment,  as  the  object  of  the  signature  was  to  show  the  court  that 
it  iiad  been  passed  upon  and  found  by  the  grand  jury,  this  is  as  well  shown  by  an  endorse- 
ment of  his  signature  as  by  placing  it  at  the  foot  of  the  indictment,  and  either  form,  we 
have  no  doubt,  will  suffice." 

(m)  Tills  count  was  upheld  in  Sanderlin  v.  The  State,  2  Humph.  315. 


478  OFFENCES  AGAINST  SOCIETY. 

and  there  the  guests  of  the  said  A.  B.,  contrary,  &c.,  and  against,  &c. 
[Conclude  as  in  book  1,  chap.  3). 

That  on,  &c.,  the  said  A.  B.  being  then  and  there  a  tavern-keeper 
and  innkeeper,  with  force  and  arms  at  the  county  of  aforesaid, 

did  then  and  there,  by  evasion,  subterfuge  and  chicanery,  sell  and 
dispose  of  spirituous  Uquors,  in  violation  of  the  plain  intent  and 
meaning  of  an  act  and  law  of  the  State  of  Mississippi,  bearing  date 
the  ninth  day  of  February,  in  the  year  of  onr  Lord  one  thousand 
eight  hundred  and  thirty-nine,  and  entuled  "an  act  for  the  suppres- 
sion of  tippling  houses,  and  to  discourage  and  prevent  the  odious  vice 
of  drunkenness,"  contrary,  &c.,  and  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 


Digging  up  and  taking  away  a  dead  body  from  a  church-yard,  at  com- 
mon law.{n) 

That  A.  B.,  late  of,  &c.,  on,  &c.,  with  force  and  arms,  &c,,  at,  &c., 
the  church-yard  of  and  belonging  to  the  parish  church  of  the  same 
parish  there  situate,  unlawfully  did  enter,  and  the  grave  there,  in 
which  the  body  of  one  M.  B.,  deceased,  had  lately  before  then  been 
interred  and  then  was,  with  force  and  arms  unlawfully,  voluntarily, 
wilfully  and  indecently  did  dig,  open,  and  afterwards,  to  wit,  on  the 
same  day  and  year  aforesaid,  with  force  and  arms  at,  &c.,  the  body  of 
him  the  said  M.  B.,  out  of  the  grave  aforesaid,  unlawfully  and  in- 
decently did  take  and  carry  away ;  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

Removal  of  dead  body  under  Massachusetts  staiute.{o) 

That  W.  S.  and  J.  K.,  late  of,  &c.,  on,  &c.,  did  unlawfully,  felo- 
niously, knowingly  and  wilfully  remove  and  convey  away  from 
the  said  town  of  a  certain  human  body,  the  body  of  J.  M.,  who 

had  deceased  at  W.,  previous  to  the  said  removing  and  conveying 

(n)  Dickinson's  Q.  S.  6tli  ed.  395. 

'I'his  has  always  been  hoidcn  a  misdemeanor  indictable  at  common  law;  4  Bla.  Com. 
235;  2  T.  R.  733,  R.  v.  Lynn;  and  so  was  selling  tlie  dead  body  of  a  person  capitally 
convicted,  for  dissection,  wliclher  there  was  direct  evidence  or  not  that  the  defendant  sold 
the  body  for  lucre  and  gain  and  for  dissection;  R.  v.  Candick,  1  D.  &  R.  N,  P.O.  13; 
Graham  B.  If  the  shroud,  colfin  or  any  other  chattel  accompanying  the  dead  body  be 
taken  away,  with  intent  to  steal,  such  taking  is  a  larceny;  see  2  and  3  Wm.  IV.  c.  75; 
Anatomy  Schools. 

See  Archl.old's  C.  P.  5th  Am.  ed.  786 ;  R.  v.  Gills,  R.  &.  R.  366,  n.;  Com,  ».  Cooley,  10 
Pick.  37.  To  cast  a  dead  body  into  a  river  without  the  rites  of  sepulchre  is  a  misdemean- 
or; Kanavan's  case,  1  (ireeril.  226.  If  the  body  cannot  be  recognized,  it  should  be  stated 
as  that  of  a  person  to  the  jurors  unknown;  and  the  same  course  of  |)leading  can  be  fol- 
lowed where  it  is  doubtful  where  the  body  was  taken  from  ;  R.  &-  R.  366,  n. 

(o)  This  is  under  stat.  1H3(),  c.  57;  Rev.  Slat.  c.  130,  s.  19;  and  with  the  exception  of 
tiie  part  in  bracitets  was  before  the  Supreme  C/0(irt  on  errrir,  in  ('oiri.  v.  Slack,  19  Pick. 
•i04.  The  judgment  was  arrested,  Wilde  J.,  saying  :  "  VVe  are  of  opinion,  tiicrefbre,  that 
as  tliore  is  no  averment  in  this  indictment,  that  the  defendants  removed  the  dead  body 
with  the  intent  to  use  or  dis[)ose  of  it  for  the  purpose  of  dissection,  and  as  we  consider 
such  intent  as  the  essence  of  the  crime,  the  iiulictmcnt  is  defective."  This  being  tiie  only 
<Tror  nolieed  by  the  court,  its  correction  may  bring  this  form  sufliciently  within  the  pro- 
visions of  the  statute.  Some  doubt,  however,  seems  to  have  been  entertained  whether  the 
statute  was  nicarit  to  include  any  cases  e.\ce|)t  those  lecurring  after  scpulelire,  and  per- 
haps it  would  be  better  to  insert  a  second  count  with  an  averment  to  tliat  cll'cct. 


NUISAXCE.  479 

away  aforesaid,  they  the  said  W.  S.  and  J.  K.,  not  being  authorized 
by  the  board  of  lieaith  or  overseers  of  the  poor  or  the  selectmen  of 
said  town  of  W,  (and  the  said  W.  S.  and  J.  K.  then  and  there,  to  wit, 
at  the  time  of.  removing  said  human  body,  intendiijg  to  use  and  dis- 
pose of  it  for  the  purpose  of  dissection,)  against,  &c.,  and  contrary, 
&.C.     {Conclude  as  in  book  1,  chap.  3). 

Disinterring  dead  body  in  JVeiv  Hampshire.{p) 

That  S,  L.,  of  Chelsea,  in  the  said  County  of  Orange,  on  the  night 
of  the  twenty-fifth  of  October,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  twenty-six,  with  force  and  arms,  at  Washington 
in  the  said  County  of  Orange,  the  pubhc  burying  ground,  near  the 
west  meeting-house  in  said  Washington,  unlawfully  did  enter,  and 
the  dead  body  of  one  B.  P.  C,  then  lately  before  laid  in  a  coffin  and 
interred  in  the  same  burying  ground,  did  then  and  there  unlawfully 
dig  up,  disinter,  remove  from  the  said  coffin,  disturb  and  carry  away, 
to  the  evil  example,  &c.,  contrary,  &c.,  and  against,  &:c.  {Conclude 
as  in  book  1,  chap.  3). 

(p)  Stale  V.  Little,  I  Verm.  R.  331. 

Tliis  indictment  is  not  drawn  with  great  caution.  It  does  not  attempt  to  charge 
the  defendant  in  the  words  of  tlie  statute.  Nor  was  that  necessary,  if  other  words  equiva- 
lent were  inserted.  It  is  objected  to  the  indictment  that  it  neither  adopts  the  words  of  tlie 
statute,  nor  those  that  are  equivalent.  The  indictment  instead  of  saying  "the  remains  of 
any  dead  person,"  says  "the  dead  body  of  Benjamin  P.  Calfe,  then  lately  before  laid  in  a 
coffin  and  interred  in  the  same  burying  ground."  What  are  the  remains  of  a  dead  per- 
son?  the  dead  body  is  the  answer.  Tliis  is  well  understood  in  common  parlance  No- 
thing else  does  remain,  after  the  spirit  has  fled,  but  the  dead  body.  In  speaking  of  a  per- 
son who  is  living,  if  we  say  that  his  body  was  hurt,  wounded,  &c.,  it  is  well  understood 
in  its  appropriate  sense.     It  means  the  body  of  a  person,  not  of  his  horse  or  his  ox. 

The  objections  that  it  does  not  appear  that  Benjamin  P.  Calfe  was  a  person — that  he 
ever  lived  and  died,  &c. — are  rather  too  nice  and  technical  to  be  sanctioned.  All  the 
statutes  against  crimes  use  the  expression  "if  any  person  shall  do  such  an  act;"  "if  any 
person  shall  break  the  peace;"  "if  any  person  shall  counterfeit  the  coins,"  «fcc.  No  in- 
dictment upon  these  statutes,  was  ever  seen  allegino-  that  the  defendant  was  a  person.  The 
charge  is  that  A.  B.  did  such  an  act.     This  is  sufficient. 

So  of  some  other  circumstances  noticed  as  objections.  They  seemed  answered  by  read- 
ing the  indictment  as  every  person  would  understand  it.  "  That  the  defendant  at  Wash- 
ington in  said  counfv,  with  force  and  arms,  the  public  burying  ground  near,  &c.,  in  said 
Washington,  unlawfully  did  enter,  and  the  dead  body  ofone  Benjamin  P.  Calfe,  then  lately 
IScfore  laid  in  a  coffin,  and  interred  in  the  same  burying  ground,  did  then  and  there  un- 
lawfully dig  up,  disinter,  remove  from  the  said  coffin,  disturb  and  carry  away."  All  these 
expressions  combined  leave  but  little  of  that  uncertainty  supposed  by  the  objections. 

But  it  is  uiged  tliat  there  is  no  averment  that  the  dead  body  remained  interred  at  the 
time  it  was  dug  up  by  the  defendant  That  it  only  appears  argumentatively.  This  would 
have  been  plausible,  if  there  were  no  allegation  of  interment.  That  the  defendant  dug  up 
the  body  would  strongly  imply  that  it  was  in  a  state  capable  of  being  dug  up;  that  is,  that 
it  was  interred.  Yet  this  would  be  inference  only.  But  when  the  indictment  not  only 
alleges  that  the  defendant  dug  up,  disturbed,  disinterred  and  removed  the  body  of  Benja- 
min P.  Calfe,  b\]t  also  alleges  that  the  same  dead  body  had  then  lately  been  laid  in  a  coffin 
and  interred  in  the  same  burying  ground,  it  seems  too  much  to  call  upon  tlio  court  to  pre- 
sume, that,  notwithstanding  all  these  allegations,  the  body  might  have  been  disinterred  in 
the  meantime  and  not  (hen  capable  of  being  dug  up  by  the  defendant. 

It  is  hardly  supposable  that  the  defendant  could  have  ever  suffered  at  the  trial,  or  been 
jeopardized,  by  the  admission  of  any  testimony  but  what  applied  to  the  indictment,  accord- 
ing to  its  most  natural  signification,  and  was  intended  by  the  grand  jury  w:io  presented 
the  same.  If  proof  had  been  offered  of  the  disinterring  of  any  other  but  a  human  body  or 
auv  other  of  the  bodv  of  a  man  or  bov  of  the  name  of  Benjamin  P.  Calfe,  it  would  have 
been  excluded,  as  not  support!. ig  the  indictment. 


480  OFFENCES  AGAINST  SOCIETY. 

Same  in  Indiana.^q) 

That  A,  B.  on,  &c.,  at,  &c.,  did  then  and  there  remove  the  dead 
body  and  corpse  of  one  P.  W.  from  interment  in  a  pubHc  burying 
ground,  in  which  she  liad  been  then  and  there  interred,  without  hav- 
ing obtained  the  consent  therefor  of  the  said  P.  in  her  hfetime,  nor  of 
her  near  relations  since  her  death,  contrary,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

Selling  the  body  of  a  capital  convict  for  dissection,  dissection  being  no 
pari  of  the  se?itence.{r) 

That  on,  &c.,  one  E.  L.  was  pubHcly  executed,  at  the  parish  of  St. 
Mary,  Newington,  in  the  County  of  Surrey;  that  on  the  day  and  year 
aforesaid,  in  the  parish  and  county  aforesaid,  one  G.  C.  of,  &c.,  un- 
dertaker, was  retained  and  employed  by  W.  W.,  the  keeper  of  the 
gaol  in  and  for  the  said  county,  to  bury  the  body  of  the  said  pisrsoii 
so  executed,  for  certain  reward  to  be  therefor  paid  to  the  said  G.  C, 
by  and  on  behalf  of  the  said  county,  and  in  pursuance  of  the  said 
retainer  and  employment,  tlie  body  of  the  said  person  so  executed  as 
aforesaid,  was  then  and  there  delivered  to  the  said  G.  C.  for  the  pur- 
pose of  being  so  by  him  buried  as  aforesaid,  and  it  then  and  there 
became  the  duty  of  the  said  G.  C.  to  bury  the  same  accordingly;  but 
that  the  said  G.  C.  being  an  evil  disposed  person,  and  of  a  most  wicked 
and  depraved  disposition,  and  having  no  regard  to  his  said  duty,  nor 
10  religion,  decency,  morality  or  the  laws  of  this  realm,  did  not,  nor 
would  bury  the  said  body  so  delivered  to  him  as  aforesaid,  but  on 
the  contrary  thereof,  on,  &c.,  at,  &c.,  aforesaid,  unlawfully  and  wick- 
edly, and  for  the  sake  of  wicked  lucre  and  gain,  did  take  and  carry 
away  the  said  body,  and  did  sell  and  dispose  of  the  same  for  the  pur- 
pose of  being  dissected,  cut  to  pieces,  mangled  and  destroyed,  to  the 
great  scandal  and  disgrace  of  religion,  decency  and  morality,  in  con- 
tempt of  our  said  lord  the  king  and  his  laws,  to  the  evil  example  of 
all  other  persons  in  like  cases  offending,  and  against,  &c.  {Conclude 
as  in  book  1,  chap.  3). 

Preventing  the  interment  of  a  dead  body  by  an  arrest.{s) 

That  A,  B.  and  0.  D.  on,  &c.,  with  force  and  arms  at,  &c.,  in,  &c., 
a  certain  dead  body,  to  wit,  the  body  of  M.  B.  then  and  there  being, 
unlawfully  and  wickedly  did  arrest, (/)  take  and  carry  away,  and 
cause  and  procure  to  be  arrested,  taken  and  carried  away,  with  au 
unlawful  and  wicked  intention  to  prevent  the  interment  and  burial 

(0)  Sustained  in  State  v.  M'Clure,  4  Blackf.  328. 

(r)  R.  V.  Cundick,  D.  &  R.  N.   P.  C.  13;  16  Eng.  Com.  Law  413.     The  defendant 

was  convicted  und  sentence  passed. 
(«)  Dickinson's  Q.  S.  p.  3;j3,  Gtli  ed. 

(1)  A  vi'.iirar  notion  at  one  time  prevailed,  that  it  was  lawful  to  arrest  the  corpse  of  a 
person  deceased,  for  a  civil  debt  due  from  the  party  in  his  lifetime.  IJut  now  it  i.s  clearly 
ascertained  that  no  such  practice  is  lawful;  indeed,  to  prevent  the  body  from  being  inter- 
red, is  an  offence  against  decency,  and  as  such  indictable  under  the  class  of  misdemeanors ; 
Jones  V.  Asliburnham,  4  Kast  R.  JCi ;  Yonny's  case,  2  T.  R.  73 1 ;  2  131a.  Com.  472,  8lh  ed. ; 
1  Burns'  Eec.  Law  by  Tyrnwhilt  258,  259. 


LOTTERIES,  &C.  4$1 

of  the  said  dead  body  of  the  said  M.  B.,  which  ought  to  have  been 
done  and  pertbrmed  according  to  the  rites  and  ceremonies  of  the 
church  of  that  part  of  this  realm  called  England,  against,  &.c.  {Con- 
clude as  in  book  1,  chap.  3). 


Selling  lottery  tickets.     Genera!  frame  of  indictment. 

That  A.  B.,  late,  &c.,  on,  &c.,  at,  &:c.,  unlawfully,  &c.,  did  sell(?f) 
to  one  C.  D.(v)  a  certain  lottery  ticket, (it>)  {where  only  lotteries  of  a 
certain  class  are  prohibited,  particularise  the  class),{x)  contrary, 
&c.     {Conclude  as  in  book  1,  chap.  3). 

{As  to  joinder  of  conspiracy  counts,  see  ante,  pp.  333,  363). 

(a)  Wliere  the  statute  includes  within  the  offence  to  offer  to  sell,  &c.,  the  averment 
"did  sell  and  offer  to  sale,"  can  hardly  be  treated  as  duplicity;  Wh.  C.  L.  til  ;  ante,  p.  130  ; 
post,  p.  484. 

(»)  The  more  judicious  course  is  to  individuate  the  offence  by  naming-  the  vendee,  or 
averring  the  sale  to  be  to  a  person  unknown;  Com.  v.  Thurlow,  24  Pick.  374;  State  v. 
Walker,  3  Harringt.  547;  Com.  c.  Eaton,  15  Pick.  273.  The  weight  of  authority  clearly 
is  that  one  or  tlie  other  allegation  must  be  made;  People  ».  Taylor,  3  Denio  99;  Peo- 
ple V.  Adams,  17  Wend.  475;  State  ».  Mungcr,  15  Verm.  290;  State  v.  Stucky,  2  Bhickf. 
289 ;  State  «.  .\Iaxwell,  5  ib.  230 ;  Butler  v.  State,  ib.  280. 
(m))   In  this  note  will  be  considered: 

(1).  To  what  cases  the  term  ticket  applies. 
(2).   In  wiiat  cases  the  ticket  should  be  set  forth. 
(1).   To  what  cases  the  term  ticket  applies.  The  general  effect  of  the  term  under  the  statutes 
usually  in  force,  is  considered  at  large  by  the  Supreme  Court  of  Missouri  in  a  recent  case. 
"The  principal  point  made  in  this  branch  of  the  case,  is,  whether  the  proof  of  the  sale 
of  a  quarter  ticket  will  sustain  the  indictment  which  charges,  that  the  defendant  sold  a 
ticket.     The  ticket  proved  to  be  sold,  read — '  The  holder  of  this  ticket  will  be   entitled  to 
one-fourth  of  the  prize  drawn  to  its   number.'     This  was  physically  a  ticket — not  part  of 
a  ticket.     That  its  holder  was  entitled,  if  among  the  fortunate,  to  only  one-fourth  of  the 
prize  drawn  by  its  corresponding  number,  does  not  make  it  less  a  ticket.     It  was  complete 
in  itself,  and  so  purports  to  be.     It  is  denominated  on  its  face  a  ticket,  though  it  appeared 
that  the  holder  was  only  entitled  to  a  certain  portion  of  prize  drawn  to  its  number.     Tlie 
instruction,  therefore,  asked  of  the  court  on  this  subject,  was  properly  refused. 

"It  is  also  insisted  that,  as  the  statutes  prohibit  the  sale  of  lottery  tickets,  an  indict- 
ment will  not  lie  for  selling  a  single  ticket.  To  sustain  this  objection,  the  decisions  in 
England  on  the  statute  of  14  Geo.  II.  c.  6,  which  makes  it  felony  without  benefit  of  clergy, 
to  steal  any  cow,  o.k,  heifer,  &c.,  are  cited.  It  was  held,  under  that  statute,  that  where 
the  indictment  charged  the  defendant  with  stealing  a  cow,  and  the  evidence  proved  it  to 
be  a  heifer,  the  variance  was  fatal,  because  the  use  of  both  words  in  the  statute,  proved 
that  the  legislature  did  not  consider  them  synonymous.  Several  adjunctions  of  a  similar 
character  liave  been  made  in  England;  and  the  courts  of  that  country,  in  favorem  vilee, 
have  commenced  some  very  nice  distinctions.  Admitting  that  our  courts  would  be  willinsr 
to  adopt  such  refinements  in  case  of  misdemeanors,  it  is  not  [)crceived  that  this  case  falls 
within  the  class  of  cases  to  which  we  have  alluded.  Il.id  the  penalties  of  the  British  sta- 
tute been  directed  against  stealing  of  cows  or  hciters,  &.c.,  and  had  it  been  adjudged  that, 
under  such  a  law,  the  stealing  of  one  cow  or  one  heifer,  was  not  an  offence  within  its 
meaning,  the  precedent  would  hive  been  apposite;"  Freleigh  v.  The  State,  8  .\Io.  612. 

(2).  In  what  cases  the  ticket  should  be  set  forth.  Where  only  lotteries  of  certain  classes 
are  prohibited,  it  would  seem  necessary  to  show,  by  setting  forth  at  least  the  |)urport  of 
the  ticket,  that  it  comes  within  the  prohibited  class;  State  r.  Sehribcncr,  2  Gill  &  J.  246  ; 
Com.  o.  Gillespie,  7  S.  &.  R.  469 ;  but  where  all  lotteries  are  illegal,  the  averment  in  the  vvords 
of  the  art  that  a  ticket  was  sold,  togetlier  with  the  name  of  the  vendee,  would  seem  enough  ; 
Cohen  v  V^irfrinia,  6  Wheat.  265;  Freleigh  t.  State,  8  Mo  606;  People  c.  Taylor,  3  Denio 
99;  State  t.  Folkt  6  N.  Hamp.  53;  Com.  v.  Clapp,  5  Pick.  4!  ;  Davis'  Prcc.  162.  In  Penn- 
sylvania,  under  the  act  of  .Vtarch  16,  1847,  the  setting  forth  the  ticket  is  expressly  dis- 
pensed with.  But  under  any  circumstances,  however,  the  averment  that  "  a  more  paiticular 
description  of  which  said  lottery  is  to  the  j\irors  aforesaid  unknown,"  will  relieve  the 
pleader  tVom  the  necessity  of  any  further  recital. 

(x)  Thus  at  one  time  in  Pennsylvania,  certain  lotteries  were  regularly  licensed,  in  whicli 
41 


482  OFrE\cES  agai\st  society. 

Siwie  where  ticket  is  lost  or  destroyed,  or  in  defendant's  possession. 

That  A.  B.,  late,  &c.,  unlawfully  did  sell  to  one  C.  D.,  a  certain  lot- 
tery ticket,  which  said  ticket  the  said  jurors  cannot  liere  set  forth,  by 
reason  that  it  is  in  the  possession  of  the  said  A.  B.,  who,  though  noti- 
fied so  to  do,  to  wit,  on,  &c.,  at,  &c.,  has  refused  and  neglected  to 
produce  it  for  the  inspection  of  the  said  jurors,(a'ar)  {or  it  seems  it  is 
enough  to  say,  "  a  more  particular  description  of  which  is  to  the  said 
jurors  unknown"), (y)  contrary,  &c.  {Conclude  as  in  book  1,  chap.  3). 

Selling  ticket  in  A/'eiv  Hampshire.{yy) 

That  J.  F.,  of,  &c.,  on,  &c.,  at,  &c.,  unlawfully  did  sell  to  one  F.  E., 
a  part  of  a  ticket,  that  is  to  say,  one-quarter  part  of  a  ticket,  at  and 
for  the  price  of  fifty  cents,  in  a  certain  lottery  not  authorized  by  the 
legislature  of  said  state,  contrary,  &.C.,  and  against,  &c.  {Conclude 
as  in  book  1,  chajJ.  3). 

Sa?ne  in  MassachuseUs.{z) 

That  E.  W.  D.,  of,  &c.,  on,  &c.,  at,  &c.,  did  unlawfully  have  in  his 
possession  with  intent  to  offer  for  sale  and  to  sell,  and  aid  and  assist 

case  it  was  necessary  to  aver  the  ticket  to  have  been  "in  a  lottery  unauthorized,"  &c., 
Corn.  V.  Gillespie,  7  S.  &,  R,  461) ;  and  now  in  New  Yorli,  in  indictments  for  promoting 
lotteries,  it  is  necessary,  as  the  precedents  will  show,  to  aver  the  lottery  to  be  one  set  on 
foot  /or  the  purpose  of  disposing  of  properly;  People  v.  Payne,  3  Denio  88. 

(xx)  Ante,  p.    132.      {y)  In  People  v.  Taylor,  3  Denf'o  91,  this  allegation  was  held  good. 

( yy)  This  count  was  sustained  in  State  c.  FoUet,  6  N.  Hamp.  53. 

{z)  This  indictment  was  sustained  in  the  Supreme  Court  of  Massachusetts,  in  Com,  ». 
Dana,  2  Mctc.  329. 

The  objection  to  the  first  and  several  other  counts  in  the  indictment,  said  the  court, 
"  is,  that  although  it  alleges,  that  the  defendant  at  Boston,  «&c.,  unlawfully  had  lottery 
tickets  in  his  possession  with  intent  to  .sell  the  same,  it  does  not  allege  an  intent  to  sell  the 
same  within  this  commonwealth ;  and  the  question  is,  wiiether  such  an  averment  is  necessary. 

"  It  is  obvious,  as  this  indictment  follows  the  words  of  the  statute,  that  the  offence  in- 
tended to  be  charged  in  the  indictment,  is  the  same  offence  which  is  punishable  by  the 
statute.  We  are  aware  that  it  is  not  always  sufficient  to  charge  an  offence  in  the  words 
of  a  statute  ;  because  a  statute  must  often  use  general  terms  and  comprehensive  descrip- 
tions;  whereas  an  indictment  requires  certainty  in  charging  the  offence  so  specifically  as 
to  give  the  party  notice  of  wh;it  he  is  to  meet,  and  enable  liim  to  traverse  tho  i'acts  averred. 
But  wlien  the  statute  itseli"  is  sufficiently  specific,  a  charge  of  the  offer  ce  in  the  words  of 
the  statute  is  sufficient,  in  point  of  certainty.  Here  the  indictment  charges  an  unlawful 
possession  of  h^ttery  tickets,  with  the  avernient  of  an  intent  to  sell  generally,  including  of 
course,  as  well  this  commonwealth,  as  all  other  places.  It  is,  in  this  respect,  general 
and  unlimited. 

"  VVIktc  the  possession  of  an  article  is  made  punishable  because  so  held  ivith  a  guilty 
intent,  if  the  act  intended  is  malum  in  se,  it  is  no  answer  to  the  charge,  1'=  it  it  was  in- 
tended thus  to  be  connnitted  out  of  the  commonwealth;  it  is  within  the  words  of  the 
statute  and  the  mischief  intended  to  be  prevented;  Com.  v.  Cone,  2  Mass.  131i. 

"  Perhaps  a  different  rule  should  |)revail,  where  the  act  intended  to  be  done  is  not  crimi- 
nal in  itself,  but  only  made  so  by  the  statute.  If,  therefore,  it  should  a[)pear  in  the  trial 
of  an  indictment  foundtd  on  this  statute,  that  the  lottery  tickets  were  in  the  possession  of 
a  person  passing  through  this  state,  and  held  only  lor  the  jiurpose  of  carrying  them  into 
another  stat(;  for  sale,  it  is  very  qnestionaiile  whether  such  proof  would  support  the  indict- 
ment. It  certainly  would  not,  if  the  construction,  which  the  dt^fendant  puts  ui)on  the 
statute,  is  a  true  one.  He  maintains,  that  by  a  reasonable  construction,  the  st:itiitc  intends 
to  [(unish  the  mere  possession  of  lottery  tickets,  when  there  is  an  intent  to  sell  them  'in 
this  commonwealth,'  though  not  so  exprcsscrl.  If  this  is  correct,  then  the  same  construc- 
tion must  be  [lut  upon  the  same  words  in  the  indictment;  and  it  would  be  the  duly  of  a 
judge,  on  the  trial  of  such   indictment,  to  instruct  a  jury,  that  if  such  an  intent  were  not 


,  LOTTERIES,  &C.  4 S3 

in  selling,  negotiating  and  disposing  of  five  hundred  certain  lottery 
tickets  and  five  hundred  shares,  to  wit,  halves  and  quarter  tickets, 
being  tickets  for  halves  and  quarters  of  prizes  drawn  to  their  respec- 
tive numbers,  all  of  said  tickets  and  sliares  being  in  a  certain  lottery 
not  authorized  by  law  in  this  commonwealth,  to  wit,  in  a  certain  lot- 
tery called  School  Fund  Lottery,  for  the  benefit  of  public  schools,  in 
State  of  Rhode  Island  ;  against,  &c.,  and  contrary,  &c.  {^Conclude  us 
in  book  I,  chap.  3). 

That  E.  W.  D.,  of,  &c.,  on,  &c.,  at,  &c.,  did  unlawfully  have  in  his 
possession  with  intent  to  sell  it,  a  certain  other  lottery  ticket  in  a  cer- 
tain lottery  not  authorized  by  law  in  said  conmionwealih,  to  wit,  in  a 
certain  lottery  called  School  Fund  Lottery,  for  the  benefit  of  public 
schools  in  Rhode  Island,  which  share  of  a  lottery  ticket  is  of  the  pur- 
port and  efiect  following,  that  is  to  say,  {settins^  forth  ticket),  against, 
<S::c.,  and  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

That  E.  W.  D.,  of,  &c.,  on,  &c.,  at,  &c.,  did  unlawfully  invite  and 
entice  and  attempt  to  invite  and  entice  sundry  persons  whose  names  to 
the  said  jurors  as  yet  are  unknown,  to  purchase  and  receive  certain 
lottery  tickets  and  certain  shares,  to  wit,  halves  and  quarter  tickets, 
being  tickets  for  halves  and  quarters  of  prizes  drawn  to  their  respec- 
tive numbers,  all  of  said  tickets  and  shares  being  in  a  certain  lottery 
not  authorized  by  law  in  this  commonwealth,  to  wit,  in  a  certain  lot- 
tery called  School  Fund  Lottery,  for  the  benefit  of  public  schools  in 
State  of  Rhode  Island;  against,  &c.,  and  contrary,  &c,  {Conclude 
as  in  book  1,  chap.  3). 

That  E.  W.  D.,  of,  &c.,  on,  &c.,  at,  &c.,  did  unlawfully  have  in  liis 
possession  with  intent  to  sell  it,  a  certain  other  lottery  ticket  in  a  cer- 
tain lottery  not  authorized  by  law  in  said  commonwealth,  to  wit,  in 
a  certain  lottery  called  School  Fund.  Lottery,  for  the  benefit  of  public 
schools  in  Rhode  Island,  which  share  of  a  lottery  ticket  is  of  the  pur- 
port and  effect  following,  that  is  to  say,  [setting  foi'th  ticket),  against, 
&.C.,  and  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

That  E.  W.  D.,  of,  &c.,  on,  &c.,  at,  &c.,  did  unlawfully  advertise 
lottery  tickets  for  sale,  and  shares  in  lottery  tickets  for  sale,  and  did 
set  up  and  exhibit  representations  of  a  lottery  and  of  the  drawing 
thereof,  indicating  thereby  where  a  lottery  ticket  or  a  share  thereof 

proved  to  their  satisfaction,  they  must  acquit  the  defendant.  It  appears  to  the  court,  there- 
fore, lliat  the  question  is  rather,  whether  the  evidence  is  sufficient  to  maintain  the  indict- 
.  nieiit,  than  wiiether  the  indictment  is  sutHciently  certain.  If  the  case  was  as  above  sup- 
j)osed,  that  the  only  intent  proved  was  an  intent  to  carry  the  tickets  into  another  state  and 
sell  them  tlieie,  the  course  would  be,  to  request  the  court  to  instruct  the  jury  tliat  such 
proof  was  not  sufficient  to  support  the  indictment ;  and  should  the  court  decline  giving  such 
instruction,  or  instruct  them  otiierwise,  then  to  take  tlie  exception.  But  here  no  question 
is  made  of  the  sufficiency  of  the  evidence  to  support  the  finding  of  an  intent  to  sell  in  this 
commonwealth.  The  question  is,  whether  it  was  necessary  to  aver  it  in  the  indictment. 
Had  the  statute  expressed  such  qualification  of  the  possession — that  is,  with  an  intent  to 
sell  within  the  commonwealth — it  must  liave  been  so  averred  in  the  indictment,  because  it 
would  have  been  a  necessary  ingredient  in  the  description  of  tlie  offence.  As  it  is  not  so 
expressed  in  the  statute,  tliis  rule  does  not  apply;  and  the  court  are  of  opinion  that  the 
intent  to  sell  generally,  being  averred  in  the  indictment,  in  Ihe  words  of  the  statute,  it  is 
sufficient,  although  it  should  be  held,  on  trial,  that  proof  of  an  intent  to  sell  in  another 
state  only  would  not  bring  the  case  within  the  statute  so  as  to  warrant  a  conviction. 

"There  being  several  counts  in  tlie  indictment,  to  which  there  is  no  other  exception 
than  the  above,  it  becomes  unnecessary  to  consider  the  other  alleged  causes  for  arresting 
tlie  judgment" 


484  OFFENCES  AGAINST  SOCIETY. 

and  certain  lottery  tickets  and  certain  shares,  to  wit,  halves  and  quar- 
ter tickets,  may  be  purchased  and  obtained,  all  of  said  tickets  and 
shares  being  in  a  certain  lottery  not  authorized  by  law  in  this  com- 
monwealth, to  wit,  in  a  certain  lottery  called  School  Fund  Lottery, 
for  the  benefit  of  public  schools  in  State  of  Rhode  Island ;  against, 
&c.,  and  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

That  E.  W.  D.,  of,  &c.,  on,  &c.,  at,  &c.,  did  unlawfully  have  in  his 
possession  with  intent  to  sell  it,  a  certain  other  lottery  ticket  in  a  cer- 
tain lottery  not  authorized  by  law  in  said  commonwealth,  to  wit,  in 
a  certain  lottery  called  School  Fund  Lottery,  for  the  benefit  of  public 
schools  in  Rhode  Island,  which  share  of  a  lottery  ticket  is  of  the  pur- 
port and  effect  following,  that  is  to  say,  {setting  forth  ticket),  against, 
&c.,  and  contrary,  &c.    {Conclude  as  in  book  1,  chap.  3). 

Advertising  lottery  tichet  in  same,  under  stat.  1825,  c.  I84.(a) 

That  W.  W.  C,  of,  &c.,  on,  &c.,  at,  &c.,  did  unlawfully  advertise 
and  cause  to  be  advertised  in  a  certain  newspaper  by  him  published, 
and  called  the  Evening  Gazette,  lottery  tickets  and  part  of  lottery  tick- 
ets, for  sale  in  lotteries  not  authorized  by  the  laws  of  said  common-^ 
wealth,  against,  &c.,  and  contrary,  &c.  ( Conclude  as  in  book  1,  chap.  3). 

Selling  lottery  tickets  in  same,  under  stat.  1825,  c.  1841,  s.  \.{b) 

That  B.  E.,  of,  &c.,  on,  &c.,  at,  &c,,  did  unlawfully  offer  for  sale, 
and  did  unlawfully  sell  to  one  J.  G.,  one-half  of  a  lottery  ticket  in  a 
lottery  not  authorized  by  the  laws  of  this  commonwealth,  called  the 
Connecticut  Lottery,  for  the  erection  of  a  bridge  at  Enfield  Falls, 
against,  &.c.,  and  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Selling  ticket  in  New  Yui'k.{c) 
That,  &c.,  at,  &c.,  on,  &c.,  did  unlawfully  vend  and  sell  to  one  W. 

(o)  This  indictment  was  sustained  on  motion  in  arrest  of  judgment,  it  beingf  held  un- 
necessary to  alleife  tiie  tickets  were  advertised  as  being  for  sale  within  this  common- 
wealth, or  to  specify  the  tickets.  'J'lie  publisher  of  the  paper,  it  was  said,  was  responsible, 
alfliongh  he  had  no  concern  in  the  sale  of  tiie  tickets. 

(/>)  Com.  V.  Eaton,  15  Pick.  273. 

This  indictment  was  resisted  on  ground  of  du[)licity,  it  being  alleged  that  to  "sell"  and 
"to  offer  for  sale,"  were  two  distinct  offences.  The  court,  however,  adjudged  an  offence 
to  be  a  stage  within  another,  and  sustained  the  indictment  on  demurrer.  This  princi[>le 
IS  Consistent  with  that  established  in  the  analogous  averments  of  "counterfeiting  and 
causing  to  be  counterfeited,"  and  of  "keeping  a  gaining  house  and  causing  others  to  game 
therein  ;"  Wli.  C.  L.  !)8.  Where  the  offences  are  of  a  distinct  nature,  neither  of  them 
capable  of  being  resolved  into  tlie  otiier,  it  is  error  to  join  tliem  in  the  same  count. 
Where  they  are  several  in  their  nature,  and  yet  of  such  a  character  that  one  of  them,  when 
complete,  necessarily  implies  the  other,  there  is  no  such  repugnancy  as  make  their  joinder 
im[)roper.  In  fact  under  such  circumstances  it  is  less  embarrassment  to  the  defendant  to 
be  thus  charged,  than  to  have  each  stage  of  the  offence  split  from  the  context,  and  set 
in  a  distinct  count. 

It  will  be  observed  that  in  this  form  the  offence  is  distinguished  by  the  description  of  the 
lottery  in  which  the  ticket  was  sold,  as  well  as  of  the  vendee.  Some  such  ear-marks  are 
necessary  for  the  protection  of  the  accused,  for  if  the  defendant  bo  merely  charged  with  sell- 
ing a  lottery  ticket,  there  is  nothing  on  tin;  record  to  show  him  what  to   plead. 

(c)  This  count  was  sustained,  it  being  held  iimieecssary  to  aver  that  the  lottery  for  the 
selling  oi'  a  ticket  in  which  the  party  was  iiidieted,  was  not  cxjiressly  authorized  by  law; 


LOTTERIES,  &C.  485 

H.  F.  a  certain  ticket,  purporting  to  be  in  the  Delaware  Lottery,  &c., 
(describijig  ticket  at  large,)  in  contempt  of  the  people  of  the  State 
of  New  York,  and  against,  &c.     (^Conclude  as  in  book  1,  chap.  3). 

Another  form  for  same. 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  unlawfnlly  did  vend  and  sell 
to  one  a  certain  ticket,  purporting  to  be  in  the  lottery, 

numbered  called  class  number  series,  with  certain  com- 

bination numbers  thereon,  to  wit,  combination  numbers  wliich 

said  ticket  purported  to  entitle  the   holder  thereof  to   one  of 

such  prize  as  might  be  drawn  to  its  number,  if  demanded  within 
after  the  drawing,  subject  to  a  deduction  of  fifteen  per  cent., 
payable  after  the  drawing,  which  said  lottery  on  the  face  of 

the  said  ticket  purported  that  the  drawing  thereof  would  take  place 
at  and  was  dated  in  contempt  of  the  people  of  the  State 

of  New  York,  and  against,  &:c.,  and  against,  &c.,  {^Conclude  as  in 
book  1,  chap.  3). 

That  A,  B.,  &c.,  at,  &c.,  did  unlawfully  offer  to  vend,  sell,  bar- 
ter, furnish  or  supply,  and  did  vend  and  sell  or  cause  and  procure  to 
be  vended  and  sold  to  one  a  ticket  or  part  or  share  of  a  ticket, 

or  a  paper  or  instrument  purporting  to  be  a  ticket  or  to  be  a  share  or 
interest  in  a  ticket  of  a  certain  lottery,  device  or  game  of  chance,  not 
expressly  authorized  by  law,  which  said  ticket,  share  of  a  ticket, 
paper  or  instrument,  was  and  is  to  the  purport  following,  that  is  to 
say,  in  contempt  of  the   people  of  the  State  of  New  York, 

against,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Promoting  lottery  in  same,  being  the  form  in  common  use. 

That  A.  B.,  &c,,  on,  &c.,  at,  &c.,  the  said  being  unauthorized 

by  special  laws  for  that  purpose,  unlawfully  did  promote  a  certain 
lottery,  called  which  lottery  was  set  on  foot  for  the  purpose  of 

disposing  of  money,  by  exposing  to  sale  tickets  and  parts  of  tickets 
in  the  said  lottery,  and  by  selling  to  one  at  the  ward,  city  and 

county  aforesaid,  a  certain  ticket  in  the  said  lottery,  called  the 
of  a  ticket  with  the  coinbination  numbers  thereon,  which  said 

ticket  was  and  is  numbered  the  whole  price  or  value  fi)r  which 

said  lottery  was  made  being  to  the  jurors  aforesaid  unknown,  against, 
&.C.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Carrying  on  lottery  whose  description  is  unknoxim  to  j}irors.{cc) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  being  unauthorized,  &c.,  {as  in 
last  form),  did  publicly  carry  on  a  certain  lottery  (a  more  particular 
description  of  which  said  lottery  is  to  the  jurors  aforesaid  unknown), 
for  the  purpose  of  exposing  certain  money,  &c,  in  contempt,  &c., 
against,  &c.,  and  against,  &,c.     {Conclude  as  in  book  1,  chap.  3). 

People  V.  Sturdevant,  23  Wend.  418.  The  counts  immediately  succeeding  are  more  to  be 
depended  upon  than  tiie  present. 

'cc)  This  count  was  sustained,  though  with  mncli  reluctance,  by  the  Supreme  Court  of 
New  York  in  People  v.  Taylor,  3  Denio  91. 

41* 


4SG  OFFENCES  AGAINST  SOCIETY. 

Selling  lottery  'policy  in  Pennsylvania,  under  act  of  March  16,  1847.(«?) 

That  A.  B.,  &c.,  on,  &.C.,  at,  &c.,  unlawfully  did  sell  to  a  certain 
person  whose  name  is  to  this  inquest  unknown,  {or  to  one  Ji.  B.),  a 
certuni  lottery  policy,  contrary,  &.C.,  and  against,  &c.  [Conclude  as 
in  book  1,  chap.  3). 

Selling  ticket  in  same,  under  same. 

That  the  said  A.  B.  afterwards,  on,  &c.,  did  unlawfully  sell  (and 
expose  for  sale  ;  see  ante,  p.  481,  n.  iv),  to  one  C.  D.,  (or  as  in  the  last 
count),  a  lottery  ticket,  to  be  drawn  in  a  lottery  in  the  state  of,  {nam- 
ing the  state  or  country),  contrary,  &c.,  and  against,  &,c.  {Conclude 
as  in  book  1,  chap,  3). 

Same  under  repealed  act  of  March  1,  1833.     First  count,  sale  of  ticket, 
ticket  being  setfortli.{e) 

That  N.  S.,  late  of,  &c.,  on,  &c.,  at,  &c.,  unlawfully  did  sell  and 
expose  to  sale  and  cause  to  be  sold  and  exposed  to  sale,  a  lottery 
ticket  in  a  lottery  not  authorized  by  the  laws  of  this  commonwealth, 
which  said  lottery  ticket  was  in  the  words  and  figures  following,  that 
is  to  say,  {setting  forth  the  ticket),  contrary,  &c.,  and  against,  &.c. 
{Co7iclude  as  in  book  1,  chap.  3). 

Second  count.  Conspiracy  to  sell  a  lottery  ticket,  SfC,  the  defendant 
being  singly  chargedvrith  a  conspiracy  with  others  unknown. 

That  the  said  N.  S.  afterwards,  to  wit,  on  the  same  day  and  year 
aforesaid,  at  the  city  aforesaid  and  within  the  jurisdiction  of  this 
court,  together  with  divers  other  evil  disposed  persons  to  the  jurors 
aforesaid  as  yet  unknown,  did  unlawfully  and  wickedly  conspire, 
combine,  confederate  and  agree  together,  unlawfully  and  wickedly 
contriving  and  intending  to  acquire  unjust  and  illegal  lucre  to  them- 
selves, to  sell  and  expose  to  sale  and  cause  and  procure  to  be  sold 
and  exposed  to  sale,  a  lottery  ticket  and  tickets  in  a  lottery  not  autho- 
rized by  the  laws  of  this  commonwealth,  to  the  evil  example,  &c., 
contrary,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Same  in  Virginia. {f) 

That  he,  J.  P.,  since,  &c.,  to  wit,  on,  &c.,  at  the  city  aforesaid, 
unlawfully  did  sell  and  cause  to  bo  sold  one  certain  lottery  ticket  in 
a  certain  lottery  to  be  drawn  in  this  commonwealth,  to  wit,  in  a  lot- 
tery called  A.  and  F.  Turnpike  Lottery,  and  then  and  there  advertised 
to  be  drawn  at  the  said  lottery  not  being  a  lottery  authorized 

(r/)  Under  this  act  incliclmrnts  merely  averring  a  sale,  but  not  stating  to  whom  or  men- 
tioniiif.'  the  ticket,  were  licld  insufficient  on  demurrer  by  Kelley  J.  in  the  Philadelphia 
Quurler  Scssionn,  June,  1847.     See  mile,  p.  481,  n.  v, 

{(■]  O.m.  V.  Sylvester,  6  Pa.  L.  J.  3(^3.  In  this  ease  it  was  held  that  not  only  might 
tlie  statutory  misdemeanor  and  the  common  law  conspiracy  be  joimd,  hut  that  on  u  verdict 
of  puilty  on  both  counts,  the  court  would  im[)Ose  a  separate  sentence  on  each. 

Sec  also  Com.  ».  Cilkspie,  7  S.  &  F{.  4011;  Com.  ».  Cantield,  Sup.  Ct.  Match,  1827,  No. 
30;  Com.  v.  Conine,  ih.  No.  20.     As  to  joinder  of  conspiracy,  see  j)p.  '.V.V.i,  3G3. 

(/)  This  count  was  bU[>ported  in  Phalen  v.  Com.,  1  Robinson  713,,  714, 


RIOT,  AFFRAY,  &C.  4  87 

to  be  drawn  by  any  contract  made  with  this  con)monweahh  prior  to 
the  25ih  day  of  February,  1834,  or  by  any  contract  made  since  in 
pursuance  of  any  law  of  this  commonwealth  passed  prior  to  the  said 
25th  of  February,  1834,  the  drawing  of  which  lottery  was  not  to 
extend  by  virtue  of  said  last  mentioned  contract  beyond  the  1st  day 
of  January,  1840,  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 


CHAPTER  IV. 

RIOT,  AFFRAY,  TUMULTUOUS  CONDUCT,  RESCUE,  PRISON   BREACH,  &C.  ; 
RESISTANCE   TO  AND  ASSAULTS  ON  OFFICERS  OF  JUSTICE. 

General  frame  of  indictment  far  riot. 

That  A.  B.,(«)  late  of,  &c.,  C.  D.,  late  of,  &c.,  E.  F.,  late  of,  &c., 
with  divers  evil  disposed  persons,  to  the  number  of  ten  or  more,  to 
the  jurors  aforesaid  as  yet  unknown,  on,  &c,,  with  force  and  arms  at, 
(S:c.,  did  unlawfully,  riotously,  routously  atid  tumultuously  assemble 
and  meet  together(6)  to  disturb  the  peace  of  the  said  common  wealtli, 
and  being  so  then  and  there  assembled  and  gathered  together,(c)  did 
then  and  there  make  great  n^ise,  riot,  tumult  and  disturbance,  and 
then  and  there  unlawfully,  riotously,  routously  and  tumultuously 
remained  and  continued  together,  making  such  noises,  tumults  and 
disturbances  for  a  long  space  pf  time,  to  wit,  &.C.,  to  the  great  terror(G?) 
and  disturbance  not  only  of  the  good  subjects  of  the  said  common- 
wealth there  inhabiting  and  residing,  but  of  all  the  other  citizens  of 
the  said  commonwealth  there  passing  and  repassing  in  and  along  the 
public  streets  and  queen's  common  highways  there,  in  contempt,  (S:c., 
and  against,  &c.     {^Conclude  as  in  book  1,  chap.  3). 

(//  is  usual  to  add  a  count  for  assault  and  battery,  on  which  the 
defendant  may  be  acquitted  if  convicted  of  riot.{e) 

(a)  On  an  indictment  for  a  riot  against  three  or  more,  if  a  verdict  acquit  all  hut  iica, 
and  find  them  guilty,  tlie  tinding  is  repugnant  and  void  unless  the  indictment  charge  thcni 
with  having  made  such  a  riot,  together  with  divers  other  persons  unknoicn  ;  for  otherwise 
it  appears  that  the  defendants  are  found  guilty  of  an  otfencc  whereof  it  is  impossible  that 
they  should  be  guilty  :  for  there  can  be  no  riot  where  there  are  no  more  than  two  persons ; 
R.  V.  Sudbury  and  others,  I  Ld.  Raym.  484;  Wh.  C.  L.  110,530.  And  let  it  be  observed, 
that  though  wonjen  are  amenable  to  the  law  as  rioters,  infants  of  eitlier  sex  under  tiie 
years  of  discrelion  arc  not;  Hawk.  b.  1,  c.  65,  s.  14.  Rut  where  six  were  indicted  for  a 
riot,  and  two  of  them  died  before  trial,  two  were  acquitted  and  two  only  found  guilty,  yet 
judgment  was  given  upon  this  verdict,  for,  by  Ld.  Mnnsficld,  they  must  have  been  found 
guilty  with  one  or  botli  of  those  who  had  not  been  tried,  or  it  could  not  have  been  a  riot ; 
li.  V.  Scott,  3  Burr.  R.  126-^. 


488  OFFENCES  AGAINST  SOCIETV. 

(b)  An  unlavvfal  assembly,  according  to  the  common  opinion,  is  a  distnrbance  of  the  peace 
by  persons  barely  assembling  together  with  an  intent  to  do  a  thing  which,  if  it  were  exe- 
cuted, would  make  them  rioters,  but  neither  actually  executing  it  nor  making  a  motion 
towards  the  execution  of  it;  Hawk.  b.  1,  c.  65.  See  R.  v.  Birt,  5  C,  &  P.  154,  and  the 
charge  of  Tindal  C.  J.,  at  Stafford  S[)ecial  Commission,  in  1842,  C.  &-  M,  G61. 

"  But,"  Hawkins  adds,  "this  seems  altogether  much  too  narrow  a  definition.  For  any 
meeting  whatever  of  great  number  of  peo[)lc,  with  such  circumstances  of  terror  as  cannot 
but  endanger  the  public  peace  and  raise  fears  and  jealousies  among  the  queen's  subjects, 
seems  properly  to  be  an  unlawful  assembly;  as  where  great  numbers  complaining  of  a 
common  grievance  (e.  g.  the  enclosure  of  land  in  which  they  all  claim  a  right  of  common, 
Hawk.  b.  1,  c.  65,  s.  8),  meet  together  armed  in  a  warlike  manner,  in  order  to  consult 
to<Tether  concerning  the  most  proper  means  for  the  recovery  of  their  interests:  for  no  one 
can  foresee  what  may  be  the  event  of  such  an  assembly  ;  Hawk.  b.  1,  c.  65,  s.  9  ;  4  Bla. 
Com.  142.  It  has  been  lately  laid  down,  that  the  meeting  must  be  under  such  circum- 
stances as  would  give  firm  and  rational  men  reasonable  ground  to  fear  breach  of  the  peace. 
Aldcrson  B.,  in  Reg.  v.  Vincent,  9  C.  &  P.  91." 

An  assembly  of  a  man's  friends  for  the  defence  of  his  person  against  those  who  threaten 
to  beat  him,  if  he  go  to  such  a  market,  or  the  like,  is  unlawful ;  for  he  who  is  in  fear  of 
such  insults  ought  to  demand  surety  of  the  peace,  and  not  make  use  of  such  violent 
methods,  which  cannot  but  be  attended  with  the  danger  of  raising  tumults  and  disorders 
to  the  disturbance  of  the  public  peace.  See  the  admirable  view  given  of  this  branch  of 
the  law,  in  the  charge  of  Judge  King  in  the  Kensington  riot  eases,  4  Pa.  L.  J.  33.  An 
assembly  of  a  man's  friends  in  his  own  hovse,  for  the  defence  of  the  possession  thereof 
against  those  who  threaten  to  make  an  unlawful  entry  thereinto,  or  for  the  defence  of  his 
person  against  those  who  tlireatcn  to  beat  him  tiierein,  is  allowed  by  law  ;  for  a  man's 
iiouse  is  looked  upon  as  his  castle;  Hawk.  b.  I,  c.  05,  s.  10;  11  Mod.  116.  But  the  like 
liberty  is  not  allowed  by  the  law  to  a  man  in  defence  of  other  pro[)erty  (e.  g.  his  close); 
R.  V.  The  Bishop  of  Bangor,   1  Russf.  C.  &  M.  255;   Dickinson's  Q.  S.  tit..  Forcible  Entry. 

If  a  number  of  persons,  being  met  together  at  a  fair  or  market,  or  any  other  lawful  or 
innocent  occasion,  happen  on  a  sudden  quarrel  to  break  the  peace,  it  seems  agreed  that 
they  are  not  guilty  of  a  riot,  but  of  sudden  affray  only,  of  which  none  are  guilty  but 
those  who  actually  engage  in  it,  because  the  design  of  their  meeting  was  innocent  and 
lawful,  and  the  subsequent  breach  of  the  peace  hap|)cncd  unexpectedly,  without  any  pre- 
vious intention  concerning  it;  Hawk.  b.  1,  c.  65,  s.  3 ;  State  v.  Snow,  18  Maine  346; 
State  V.  C'ole,  2  M'Cord  117.  If  the  object  of  the  assembly  be  lawful,  it  in  general  requires 
stronger  evidence  of  the  terror  of  the  means  to  induce  a  jury  to  return  a  verdict  of  guilty, 
than  if  the  object  were  unlawful;  and  it  has  even  been  holden  that  if  a  number  of  persons 
assemble  for  the  purpose  of  abating  a  public  nuisance,  and  appear  with  spades,  iron  crows, 
and  the  proper  tools  for  that  purpose,  and  abate  it  accordingly,  without  doing  more,  it  is 
no  riot,  Dalt.  c.  137;  unless  threatening  language  or  other  misbehaviour  in  apparent  dis- 
turbance of  the  peace  be  at  the  same  time  used;  ib.  Yet  it  is  said,  that  if  persons  inno- 
cently assembled  together  do  afterwards,  ujwn  a  dispute  happening  to  arise  among  them, 
form  themselves  into  parties  with  promises  of  mutual  assistance,  and  then  make  an  affray, 
they  are  guilty  of  a  riot:  because  upon  their  confederating  together  with  an  intention  to 
break  the  peace,  they  may  as  properly  be  said  to  be  assembled  together  for  that  purpose 
from  the  time  of  such  confederacy,  as  if  their  first  coming  together  had  been  on  such  a 
design;  ib.;  Wh.  C.  L.  524,  et  seq.  If  a  person,  seeing  others  actually  engaged  in  a  riot, 
do  join  himself  unto  them  and  assist  them  therein,  he  is  as  much  a  rioter  as  if  he  had  at 
first  assembled  with  them  tiir  the  same  purpose,  inasmuch  as  lie  has  no  j)retence  to  con- 
t('nd  th:it  he  came  iin>ocently  into  the  company,  but  :i])p(  ars  to  have  joined  himself  unto 
them  with  an  intention  to  second  them  in  the  execution  of  their  unlawful  enterprise;  and 
it  would  be  endless  as  well  as  sujiertluous  to  examine  whether  every  particular  person 
engaged  in  a  riot  were,  in  truth,  one  of  the  first  assembly  or  actually  had  a  previous 
knowledge  of  the  design  of  its  movers;  Hawk.  b.  1,  c   6.5,  s.  3. 

It  has  been  holden  that  the  enterprise  ought  to  be  acconipanied  with  some  offer  of  vio- 
lence either  to  the  person  of  a  man  or  to  his  j)ossessions,  as  by  beating  him  or  forcing  liini 
to(|uit  the  possession  of  his  lands  or  goods,  or  the  like;  and  from  hence  it  seems  to  follow 
that  persons  riding  together  on  the  road  v\ith  uimsual  weajions,  or  otherwise  assembling 
together  in  such  a  manner  as  is  apt  to  raise  a  terror  in  the  people,  without  any  offer  of 
violence  to  any  one  in  respect  either  of  his  |)erson  or  possessions,  are  not  properly  guilty 
of  a  riot,  but  only  of  an  uidawful  assembly;  ib.  s.  4  ;  Wh.  C.  L.  524.  Thus  wliere  a 
band  of  men,  consisting  of  eight  or  t(  n  persons,  disguised,  paraded  at  night  through  the 
streets  of  a  town,  armed  with  guns  or  pistols  or  both,  and  marelud  backwaid  and  fiirward 
through  the  streets,  shooting  guns  and  blowing  horns,  to  the  terror  and  alarm  of  inhabit- 
ants,  it  was  held  ihnt  the  perpetrators  were  guilty  of  a  riot,  and  a  motion  for  a  new  trial 
was  refused;  State  v.  P.r;r/,il  el  (iL,  Kice  I{.  2.j7.     However,  it  seems  to  be  clearly  agreed 


RIOT,  AFFRAY,  &C.  489 

Affray  at  common  law-ij') 

That  J.  S.,  &c..,  and  J.  W.,  &c.,  on,  &c.,  with  force  and  arms  at, 
&c.,  being  unlawfully  assembled  together  and  arrayed  in  a  warHke 
manner,  then  and  there  in  a  certain  public  street  and  highway  there 
situate,  unlawfully  and  to  the  great  terror  and  disturbance  of  divers 
liege  subjects  of  our  said  lady  the  queen  tlien  and  there  being,  did 
make  an  affray ;  in  contempt  of  our  said  lady  the  queen  aiid  her 
laws,  to  the  evil  example,  &c.,  and  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

Unlau-ful  assembly  and  assauU.{g) 
That  J.  D.  et  al.,  together  with  divers  other  evil  disposed  persons 

that  in  every  riot  there  must  be  some  circuriistance  either  of  actual  violence  or  force,  or  at 
least  of  an  apparent  tendency  thereto,  as  is  naturally  apt  to  strike  a  terror  into  tlie  people, 
as  the  sliovv  of  arms,  threatening  speeches  or  turbulent  gestures,  ib.  s.  4:  for  every  such 
offence  must  he  laid  to  the  terror  of  the  peojile ;  ib.;  R.  v.  Hughes,  4  C.  &.  P.  373.  "And 
from  hence,"  adds  Hawkins,  "it  clearly  follows  that  assemblies  at  wakes  or  other  festival 
times,  or  meetings  for  exercise  of  common  sports  or  diversions,  as  bull-baiting,  wrestling, 
and  such  like,  are  not  riotous.  And  from  the  same  ground  also  it  seems  to  fjllow  that  it 
is  possible  for  three  persons  or  more  to  assemble  together  with  an  intent  to  execute  a 
wrongful  act,  and  also  actually  to  perform  their  intended  enterprise,  without  being  rioters ; 
as  if  a  competent  number  of  persons  assemble  together  in  order  to  carry  off  a  piece  of 
timber  to  wliicii  one  of  the  company  has  a  pretended  right,  and  afterwards  to  carry  it 
away  without  any  threatening  words  or  otlier  circumstances  of  terror."  He  adds,  that 
by  parity  of  reasoning,  the  assembling  together  in  a  peaceful  manner  to  do  a  thing  con- 
trary to  a  statute  {e.g.  to  celebrate  rnass),  and  afterwards  peaceably  performing  the  thing 
intended,  cannot  be  a  riot;  Hawk.  b.  1,  c.  65,  s.  5. 

Whether  the  proclamation  from  the  riot  act  be  read  or  not,  tlie  common  law  misde- 
meanor of  riot  remains;  and  magistrates,  constables  and  even_private  persons  may  dis- 
l)erse  the  offenders,  and  by  force  if  it  cannot  be  otherwise  accomplislied  ;  R.  v.  Fursy,  6 
C  &  P.  81.  It  is  sufficient  to  allege  that  the  defendants  assembled  "with  force  and  arms," 
and  being  so  assembled  committed  acts  of  violence,  without  repeating  the  wards  "force 
and  arms;"  Com.  v.  Runnels,  10  Mass.  .518.  Where  the  indictment  charged  in  substance 
"that  the  defendants  unlawfully,  riotously  and  routously  assembled  together  to  disturb  the 
peace  of  the  state,  and  being  so  assembled  did  make  great  noise,  riot,  tumult  and  disturb- 
ance fi)r  a  long  space  of  time,  to  the  great  terror  and  disturbance  of  the  people,"  &c.,  it 
was  held  conformable  to  the  precedents  in  such  cases,  and  sufficient;  State  v.  Brazil  et  al.. 
Rice  R.  257.  An  indictment  charging  that  the  defendants,  "with  force  and  arms,  at  the 
house  of  one  S.  R.,  situate,  &,c.,  did  then  and  there  wickedly,  maliciously  and  niis- 
chievousl}',  and  to  the  terror  and  dismay  of  the  said  S.  R.,  fire  several  guns,"  is  good.  No 
technical  woids  are  necessary,  but  it  should  appear  that  such  force  and  violence  were  used 
as  amount  to  a  breach  of  the  peace.  All  that  the  law  requires  in  indictments  of  this  kind 
is,  that  the  facts  shall  be  so  stated  as  to  show  a  breach  of  the  peace,  and  not  merely  a  civil 
tres[)ass ;  State  v.  Langtbrd,  3  Hawks  381. 

(r)  It  is  said  that  an  unlawful  purpose  of  assembly  must  be  shown ;  but  this  seems 
doubtful,  as  a  riot  may  occur  though  the  original  object  of  the  meeting  was  lawful.  See 
R.  V.  Gulston,  2  Ld.  Raym.  1210. 

(</)  These  words  are  essential  to  sustain  a  charge  of  riut ;  but  if  the  indictment  omit 
them,  and  riotous  acts,  as  cutting  down  fences,  &.c.,  are  proved,  it  will  still  sup|)ort  a  con- 
viction of  an  unlawful  "assembly;"  R.  ».  Cox,  4  C.  &  P.  538;  Parke  B.  "So,  if  after 
assembling  for  what  if  executed  would  make  the  |)arties  rioters,  they  separate  without 
carrying  their  purpose  into  effect;"  R.  ».  Birt,  5  C  <fc  P.  154;  Patteson  J. 

(e)  STiause  v.  C'om.,  5  Barr  83 ;  R.  v.  Higgins,  2  East  R.  3. 

(/)  Archbold's  C.  P.  5th  Am.  ed.  708. 

{g)  Com.  V.  Du[)uy,  6  Pa.  L.  J.  223.  The  defendants  were  shown  to  have  entered  the 
Weccaco  church  in  Philadel|)hia  county,  for  the  purpose  of  preventing  a  particular  minis- 
ter from  officiating,  and  to  have  when  there  created  considerable  disturbance.  A  verdict 
of  guilty  was  rendered  under  instructions  from  Kennedy  J.;  the  indictment  being  held  to 
cover  the  offence. 


490  OFFENCES  AGA1\ST  SOCIETY. 

to  the  number  of  three  and  more  (to  the  jurors  aforesaid  yet  un- 
known), on,  &.C.,  with  force  and  arms,  &c.,  at,  &c.,  did  unlawfully, 
riotously  and  routously  assemble  and  gather  together  to  disturb  the 
peace  of  the  said  commonwealth;  and  so  being  then  and  there  as- 
sembled and  gathered  together,  in  and  upon  one  S,  W.,  in  the  peace 
of  God  and  the  said  commonwealth  then  and  there  being,  unlawfully, 
riotously  and  routously  did  make  an  assault,  and  him  the  said  S.  W. 
then  and  there  unlawfully,  riotously  and  routously  did  beat,  wound 
and  ill-treat,  so  that  his  life  was  greatly  despaired  of,  and  other 
wrongs  to  the  said  S.  VV.  then  and  there  unlawfully,  riotously  and 
routously  did,  to  the  great  damage  of  the  said  S.  W.,  and  against,  &c. 
(Conclude  as  hi  book  1,  chap.  3). 

Riot  and  hauUvg  away  a  icagon.{h) 

That  R.  S.,  late  of,  &c.,  together  with  four  others  persons,  to  the 
inquest  aforesaid  unknown,  on,  &c.,  at,  &c.,  with  force  and  arms, 
&LC.,  riotously,  routously  and  unlawtully  to  disturb  the  peace  of  this 
commonwealth,  did  assemble  themselves  together,  and  so  being  as- 
sembled and  met  together,  a  certain  wagon  of  the  value  of  thirty  pounds, 
of  the  goods  and  chattels  of  S.  B.  then  and  there  being  found,  then 
and  there  with  force  and  arms,  &c.,  riotously,  routously  and  unlaw- 
fully did  take  and  haul  away,  to  the  great  damage  of  the  said  S.  B., 
to  tlie  terror  of  the  good  citizens  of  this  commonwealth,  to  the  evil 
example,  &c.,  and  against,  &c.      [Conclude  as  in  book  1,  chap.  3). 

Riot,  in  hreakivg  the  ivindows  of  a  man's  house. (i) 

That  J.  M.  and  P.  C,  with  certain  other  wicked  and  ill-disposed 
persons,  to  the  number  of  twenty  and  upwards,  to  the  inquest  afore- 
said unknown,  on,  &c.,  at,  &c.,  with  force  and  arms,  &c.,  to  wit,  with 
stones,  sticks,  staves  and  clubs  as  rioters,  routers  and  disturbers  of  the 
peace  of  the  commonwealth,  riotously,  routously,  tumnltuously  and 
unlawfully  did  assemble  and  gather  themselves  together,  and  so  being 
assembled  and  gathered  together,  the  day  and  year  aforesaid,  at  the 
county  aforesaid,  the  doors  and  windows  of  the  mansion  house  of  J. 
L.,  in  the  same  county  standing  and  being,  with  clubs,  sticks,  staves 
and  stones  then  and  there  riotously,  routously  and  unlawfully  did 
break,  pull  down,  spoil  and  destroy,  and  the  same  mansion  house 
then  and  there  riotously,  routously  and  unlawfully  did  enter  and  the 
said  J.  J^.  did  beat,  wound  and  ill-treat,  and  other  harms  then  and 
there  did  to  the  said  J.  L„  to  the  great  damage  of  the  said  J.  L.,  to 
the  evil  example,  &c.,  to  the  great  terror  and  disturbance  of  all  the 
good  citizens  of  the  commonwealth,  and  against,  &c.  {Conclude  as 
in  book  1,  chap.  3). 

Riot  and  jmlUng  down  a  dwelling  house  in  the  possession  of  j)rosecutor.{j) 
That  W.  S.,  J.  S.,  li.  S.  and  D.  L.,  late  of  the  County  of  Pike  afore- 

(/()   Drawn  in  17S0  by  Mr.  Bradford.  (i)  lb. 

{j  )  Coin.  V.  Sliuusc,  Supreme  Court  Pa.,  Marcli  T.  1847,  No.  1.     This  indictment  was 


RIOT,  AFFRAY,  &C.  491 

said,  together  with  divers  other  persons  to  the  number  of  ten  or  more, 
to  the  jurors  aforesaid  as  yet  iinlcnown,  being  rioters,  routers  and  dis- 
turbers of  the  peace  of  the  commonwealtli,  on,  &c.,  with  force  and 
arms,  that  is  to  say,  with  sticks,  staves,  clubs  and  otiier  hurtlul 
weapons,  at,  &c.,  did  uulawfully,  riotously,  routously  and  tumultu- 
ously  assemble  and  meet  together,  to  the  great  terror  of  the  peaceable 
people  and  inhabitants  of  this  commonwealth,  and  to  disturb  the 
peace  of  the  said  commonwealth,  and  being  so  assembled  and  mot 
together,  one  building  and  dwelling  house  in  the  possession  of  J.  W. 
of  the  County  of  Pike  aforesaid,  did  then  and  there  riotously,  rout- 
ously and  unlawfully  pull  down,  break  down,  destroy  and  other 
wrongs  to  the  said  J.  W.  did  then  and  there,  to  the  great  damage  to 
the  said  J.  W.,  contrary,  &c.,  and  against,  &c.  [Conclude  as  in  book 
1,  chap.  3). 
{.idd  second  count,  giving  riot  and  assault  on  prosecutor). 

Riot  and  false  imprisonment.{k) 

That  G.  S.,  et  al.,  on,  &c.,  at,  &c.,  with  force  and  arms,  &:c., 
themselves  as  rioters  and  disturbers  of  the  peace  of  our  lord  the  now 
king,  riotously,  routously  and  tumultuously,  with  an  intent  the  peace 
of  our  said  lord  the  now  king  to  disturb  and  uiterrupt,  did  assemble 
and  gather  together,  and  so  then  and  there  being  assembled  and 
gathered  together,  then  and  there  with  force  and  arms,  &c.,  riotously, 
routously  and  tumultuously  in  and  upon  a  certain  H.  B.,  in  the  peace 
of  God  and  our  said  lord  the  now  king  then  and  there  being,  an  as- 
sault did  make  and  him  the  said  H.  B.  then  and  there  without  any 
lawful  warrant  or  authority  did  imprison  and  restrain  of  his  liberty 
for  the  space  of  two  hours,  and  then  and  there  did  compel  and  oblige 
him  ihe  said  H.  to  pay  the  sum  of  two  shillings  current  money  of  this 
province,  and  to  give  and  deliver  a  certain  red  cow,  being  the  proper 
cow  of  him  the  said  H.  B.,  unto  the  said  G.  S.  to  obtain  his  dis- 
charge and  regain  his  liberty  from  the  imprisonment  aforesaid,  to 
the  evil  example,  &c.,  in  contempt,  &c.,  and  against,  &c.  {Conclude 
as  in  book  1,  chap.  3). 

Disturbing  the  peace,  6fC.,  on  land  occupied  by  the  United  Slates  for  an 
arsenal. 

That  C.  S.,  et  al,  all  of  Springfield  in  said  district  of  Massachusetts, 
on  the  day  of  June,  &c.,  at  said  Springfield,  on  land  belonging 

to  the  said  United  States,  to  wit,  on  land  occupied  for  an  army  or  ar- 
senal and  tor  purposes  connected  therewith,  out  of  the  jurisdiction  of 
any  particular  state  of  the  said  United  States  and  within  the  jurisdic- 
tion of  the  said  United  States,  together  with  divers  other  persons  whose 
names  are  to  the  jurors  aforesaid  as  yet  unknown,  to  the  number  of 
four,  being  evil  disposed  and  disorderly  persons,  with  force  and  arms 

considered  in  5  Barr  83;  where  it  was  held,  tliat  under  an  indictment  charg-ing  four 
witli  riot  and  riotous  assault  and  battery,  one  may  be  convicted  of  an  ass.iuit  and  battery, 
and  the  others  acquitted  jrenerally. 

(i-)  Tills  indictment  was  framf-H  in  1759  by  Benjamin  Cliew,  the  then  attorney-general 
of  Pennsylvania,  and  stood  tlic  lest  of  a  conviction. 


492  OFFENCES  AGAINST  SOCIETY. 

did  then  and  there  uniawfiilly,  riotously  and  rontoiisly  assemble  and 
gather  themselves  together  to  disturb  the  peace  ot'the  said  United  States, 
and  being  so  assembled  did  then  and  there  unlawfully,  riotously  and 
routously,  with  force  and  arms,  cut  down  and  destroy  and  carry  away 
a  certain  fence,  the  property  of  the  said  United  States,  and  a  certain 
small  wooden  building  the  property  of  the  said  United  States,  and 
other  wrongs  then  and  there  did,  to  the  terror  of  the  people  there 
residing,  being  and  passing ;  in  evil  example,  &.c.,  and  against,  &c., 
and  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Disturbance  of  elections  in  Massachusetts.^.) 

That  the  inhabitants  of  W.,  on,  &c.,  at,  &c.,  aforesaid,  were  duly 
assembled  in  town  meeting,  for  the  choice  of  town  officers  for  the 
political  year  then  next  ensuing;  that  a  moderator  was  duly  chosen, 
who  called  on  the  electors  present  to  give  in  their  votes  for  a  select- 
man for  the  said  political  year  then  next  ensuing;  and  that  T.  F.  H., 
of  in  the  county  of  on  the  day  and  year  before  mentioned, 

when  the  said  moderator  was  presiding  at  the  meeting,  and  was  re- 
ceiving the  votes  for  a  selectman,  with  force  and  arms,  intending  as 
much  as  in  him  lay  to  prevent  tlie  choice  of  said  selectman  according 
to  the  will  of  the  said  electors,  and  to  interrupt  the  freedom  of  elec- 
tion, unlawfully  and  disorderly  did  openly  declare  that  the  old  select- 
man should  not  be  chosen,  an.d  attempted  repeatedly  to  take  from  the 
box,  which  contained  the  votes  of  the  electors,  the  votes  of  the  elec- 
tors;  (and  so  the  jurors  say,  that  the  said  J.  F,  H.,  on  the  day  and 
year  aforesaid,  and  at  in  the  county  aforesaid,  in  the  public 

town  meeting  aforesaid,  did  behave  himself  disorderly  and  indecently, 
to  the  disturbance  of  the  peaceable  and  quiet  citizens  then  and  there 
assembled  for  the  purpose  aforesaid,  in  violation  of  the  rights  of  pri- 
vate suffrage),  against,  &c.,  and  contrary,  &c.  {Conclude  as  in  book 
1,  chap.  3). 

Interrupting  a  judge  of  the  election  in  Pennsylvania. 

That  B.  G.,  &c.,  on,  &c.,  at,  &c.,  designing  and  intending  the  due 
execution  of  the  laws  of  tins  connnonwealth  to  obstruct  and  prevent, 
with  force  and  arms,  &c.,  did  threaten  and  use  violence  to  the  person 
of  one  J,  B.,  he  the  said  J.  B.  then  and  there  being  one  of  the  judges  of 
the  election  in  the  City  of  Philadelphia,  at  a  general  election  held  in 
and  for  the  said  city,  on,  &c.,  duly  chosen,  ap[)oinlcd  and  sworn  by 
virtue  of  an  act  of  tlie  general  assembly  of  this  commonwealth,  enti- 
tled an  act,  &c.,  and  in  the  dua  execution  of  his  said  office  tfien  and 
there  also  being,  and  then  and  there  with  threats  and  opprobrious  lan- 
guage did  interrupt  the  said  J.  B.  in  the  execution  of  his  oflice,  and 
then  and  there  did  say  to  the  said  J.  B.,  he  the  said  J.  B.  still  being 
ill  the  due  execution  of  his  said  office,  "  you  (the  said  J.  B.  mean- 
ing) damned  infernal  rascal,  I  will  sec  you  for  this  another  time," 

{I)  The  part  in  brackets  of  tliis  count  was  lield  in  Com.  v.  Ilo.xny,  16  Mass.  38.5,  to 
com[)rclu:n(J  an  offence  at  common  law,  tlujuirli  (lie  avcrmcrifs  luiicn  altopetlier  were  pro- 
nounced iusuiricieiit  to  sustain  a  sentence  under  tlie  act  of  17f^5,  c.  1^>,  s.  6. 


DISTURBING  RELIGIOUS  MEETINGS.  493 

thereby  meaning  and  intending  to  prevent  and  debar  the  said  J.  B. 
from  proceeding  in  the  execution  of  his  said  otiice,  to  the  evil  ex- 
ample, &c.,  contrary,  &c.,  and  against,  &.c.  [Conclude  as  in  hook  I, 
chap.  3). 

Disturbing  a  religious  meeting,  under  the  Virginia  statute.{m) 

That  W,  I).,  late  of  the  County  of  Lewis,  yeoman,  on  the  sixth  day 
of  October,  on,  &c.,  vvitii  force  and  arms  at,  &,c.,  during  reHgious  wor- 
ship, did  on  purpose,  maliciously  and  contemptuously  disquiet  and 
disturb  a  certain  congregation  of  Methodists,  being  then  and  there 
lawfully  assembled  tor  tlie  purpose  of  religious  worship,  in  contempt 
of  public  worship,  to  the  evil  example,  &c.,  contrary,  &.C.,  and  against, 
&c.     {Conclude  as  in  book  1,  chap.  3). 

Disturbing  a  congregation  worshipping  in  a  clnirch,  at  common  law.{n) 

That  J.  D.,  &c.,  on,  &c.,  being  Sunday,  with  force  and  arms  at, 
&c.,  in  the  Ebenezer  Baptist  Church  there,  during  the  celebration  of 
divine  service,  unlawfully,  unjustly  and  irreverently  did  disturb  and 
hinder  one  J.  V.,  then  being  the  minister  officiating  in  the  said  church 
and  then  being  in  the  discharge  of  his  sacred  functions  and  in  the 
performance  of  divine  service,  in  conte.upt  of  the  laws  of  this  state, 
to  the  evil  example,  &.c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Disturbing  same  in  a  dioelUng  house.(p) 

That  on,  &c.,  at,  &c.,  a  number  of  the  citizens  of  said  county  were 
peacefully  assembled  at  the  house  of  J.  W.  in  said  county,  for  reli* 

(ffi)  See  Com.  v.  Daniels,  2  Va.  Cases  402,  where  the  form  in  the  text  was  upheld. 
"This  indictment,"  say  the  court,  "sets  forth  the  place  where,  the  time  when,  as  well  as 
the  denomination  of  reli2:ious  persons  to  whom  the  disturhaiice  was  offered.  It  also 
charges  the  defendant  with  the  offence  in  the  very  words  of  the  statute.  But  it  is  urged, 
that  as  the  time  at  which  it  is  offered  may  be  proved  to  have  been  different  from  that 
alleged,  the  want  of  an  averment  as  to  the  means  by  whicli  the  disturbance  was  effected, 
renders  the  indictment  too  uncertain  to  be  supported.  We  do  not  doubt  that  it  is  a  correct 
mode  of  drawing  an  indictment,  to  charge  the  means  by  which  the  disturbance  was  caused, 
where  those  means  can  be  ascertained,  but  when  we  find  that  an  indictment  similar  to 
this,  founded  on  an  English  statute,  bearing  a  trreat  resemblance  to  ours,  has  been  acted 
on  in  the  Court  of  King's  Bench,  atid  a  judgment  thereon  rendered  against  sundry  per- 
sons for  the  penalty  prescribed  by  that  statute,  we  are  of  opinion  that  the  question  is  suf- 
ficiently settled. 

"  It  may  further  be  remarked,  that  there  seems  to  be  but  little  difference  in  point  of  cer. 
tainty  between  the  simple  averment  of  a  disturbance  and  disquieting  in  the  words  of  the 
act,  and  the  averment  that  the  defendant  did  '  make  divers  great  cries,  noises  and  disturbs 
ances,  to  disturb  and  disquiet,  and  did  then  and  there  disturb  and  disquiet,'  &c.,  or  this 
averment,  'that  they  did  disquiet  and  disturb  the  congregation  by  then  and  there  talking, 
laughing,  cursing  and  swearing  with  a  loud  Voice,,''  both  of  wliich  are  to  be  found  in  approved 
precedents  as  copied  by  Chilty. 

"On  the  whole  matter,  we  arc  of  opinion  that  it  should  be  certified,  'that  it  is  not  neces- 
sary in  an  indictment  for  disturbing  a  religious  congregation,  to  set  out  the  means  by 
whicli  the  disturbance  or  disquieting  was  offcredi'  " 

(n)  Pcr.ple  V.  Dcgcy,  2  Wheel.  C.  C.  135. 

(o)  St,ite  V.  Swink,  4  Dev.  &  Bat.  368. 

"  This  case,"  said  Ruffin  C.  J.,  "  is  lully  within  tlie  principle  of  Jasper's  case,  4  Dev,  R. 
323,  which  is  that  a  congregation  of  people  collected  together  for  the  purpose  of  divine 


494 


OFFENCES  AGAINST  SOCIETY. 


gions  worship,  and  for  the  purpose  of  offering  prayers  to  Almighty 
God,  and  the  said  persons  being  then  and  there  so  assembled  together 
for  the  purpose  aforesaid,  and  actually  engaged  in  divine  worship,  P. 
R.  S.  and  J.  E.  S.,  &c.,  well  knowing  the  purpose  of  the  said  meeting, 
with  force  and  arms  did  then  and  there  enter  into  said  house,  and  by 
loud  and  abusive  language  then  and  there,  with  profane  oaths  and 
violent  actions  did  disturb,  wantonly  and  intentionally,  the  worsliip  of 
the  Almighty,  and  did  disturb  and  molest  the  citizens  then  and  there 
assembled  for  divine  worship,  to  the  great  contempt  of  religion,  to 
the  common  nuisance  of  the  citizens  of  the  state  theu  and  there  being, 
and  against,  &c.     {Conclude  us  in  book  1,  chap.  3). 

Dressing  in  a  icomaii's  clothes  and  disturbing  a  congregation  at  uor- 
ship.{p) 

That  S.  S.,  &c.,  being  an  injurious,  profane  and  irreligious  man,  on, 
&c,,  at,  &c.,  did  dress  and  disguise  himself  in  woman's  apparel,  and 
being  so  as  aforesaid  dressed  and  disguised,  then  and  there  did  go  to 
the  Lutheran  Church,  called  Augustus  Church,  in  the  same  township 
and  county,  with  an  intention  then  and  there  to  interrupt  and  disturb 
divers  of  his  majesty's  liege  subjects  then  and  there  assembled  and 
gathered  together  to  worship  God,  and  then  and  there  wickedly,  pro- 
fanely and  irreligiously  did  molest,  vex,  interrupt  and  disturb  a  cer- 
tain Henry  A.  Muhlenberg,  rector  of  the  said  church,  then  and  there 
preacliing  to  divers  of  his  majesty's  liege  subjects  in  the  same  church, 
he  the  said  Henry  A.  Muhlenberg,  then  and  there  being  lawfully 
charged  and  qualified  to  preach  in  the  same  church  by  reason  of  his 
care  and  function,  and  other  harms  to  him  the  said  Henry  A. 
Muhlenberg  then  and  there  did,  to  the  great  displeasure  of  Almighty 
God,  in  contempt  of  his  worship  and  religion  and  of  the  laws  of  the 
land,  to  the  evil  example,  &c.,  and  against,  &c.  [Conclude  as  i/i 
book  1,  chap.  3). 

Going  armed,  <^'C.,  to  the  terror  of  the  people,  at  common  lau\{q) 

That  R.  S,  H.,  &,c.,  on,  &c.,  with  force  and  arms  at,  &c,,  did  arm 
himself  with  pistols,  guns,  knives  and  other  dangerous  and  unusual 

service  and  enoraged  in  the  worship  of  Almighty  God,  are  protected  by  the  laws  and  con- 
stitution of  this  state  from  wanton  iriterrn|)tion  or  disturbance.  To  entitle  tiieni  to  that 
protection,  it  is  not  requisite  that  tiiey  should  be  assembled  in  a  church,  ciiapel  or  meeting' 
Jiouse  ;  as  in  tliis  state,  houses  set  apart  by  reli<jious  societies  permanently  for  worship  are 
generally  and  indifi'orently  called,  'i'hat  would  be  ihe  rule,  if  the  indictment  were  framed 
upon  a  statute  protectirifr  cimrehes,  or  i)(0|)!e  worshippinj,'-  in  ciuirehes.  But  under  the 
enlarffcd  sense  of  the  constitution,  'a  j)laee  of  worship'  is  constituted  by  the  congregating' 
of  numerous  worshippers  thereat;  for  it  is  the  right  of  conscience,  the  worship  of  the  Su- 
prerrie  IJeing  by  liis  creatures  that  is  i)roleeled,  and  not  merely  the  edifice.  Our  opinion 
therefore  is,  that  although  the  assembly  was  at  a  private  house — as,  we  think,  must  be  in- 
tended upon  this  indi(;tment — the  defendants  were  fjuilty  of  a  gross  misdetneanor  in 
molesting  tfiosc  i)ersons  there  engaged  in  otfering  their  common  prayers  or  united  in  other 
acts  of  worshij)  to  God." 

{ p)  This  indictment  was  framed  in  IT.W  by  Benjamin  Chew,  the  then  attorney-general 
of  llie  [trovinee. 

iq)  .State  v.  Ilimtley,  3  Iredell  418. 

■Gaston  J.  said:  "The  argument  is,  that  the  offence  of  riding  or  going  about  armed 


RIOT,  AFFRAY,  &C.  495 

weapons,  and  being  so  armed  did  go  fortli  and  exhibit  himself  openlv, 
both  in  the  day  time  and  in  the  night,  to  the  good  citizens  of  Anson 

with  unusual  and  danorerous  weapons,  to  the  terror  of  the  people,  was  created  by  tlie  statute 
of  Northampton,  2d  Ed.  III.  c.  3;  and  that,  whctlier  this  statute  was  or  was  not  for- 
merly in  force  in  this  state,  it  certainly  lias  not  been  since  tjjc  first  of  January,  1838,  at 
which  day  it  is  declared  in  the  Rev.  Stats,  (c.  1,  s.  2),  tiiat  tlie  statutes  of  Erio^land  and 
Great  Britain  shall  cease  to  be  of  force  and  effect  here.  We  have  been  accustomed  to 
believe  that  the  statute  referred  to  did  not  create  this  offence,  but  provided  only  special 
penalties  and  modes  of  proceeding  for  its  more  effectual  suppression;  and  of  the  correct- 
ness of  this  belief  we  can  see  no  reason  to  doubt.  All  tiie  elementary  writers  who  ^\ve 
us  any  information  on  the  subject,  concur  in  the  representation;  nor  is  tiiere  to  be  found 
iti  them,  as  far  as  vvc  are  aware  of,  a  dictum  or  intimation  to  the  contrary.  Bhickstone 
states,  tliat  'the  offence  of  ridings  or  goings  armed  with  dangerous  or  unusual  weapons  is 
a  crime  against  the  pul)lic  peace,  by  terrifying  the  good  people  of  tlie  land;  and  is  parti- 
cularly prohibited  by  the  statute  of  Northampton,  2  Ed.  III.  c.  3,  upon  pain  of  forfeiture 
of  the  arms  and  imprisonment  during  the  king's  pleasure;'  4  Bla.  Com.  14^.  Hawkins, 
treating  of  offences  against  the  public  peace,  under  the  head  of  '  Affrays,'  pointedly 
remarks,  'but  granting  that  no  bare  words  in  judgment  of  law  carry  in  them  so  much 
terror  as  to  amount  to  an  affray,  yet  it  seems  certain  that  in  some  cases  there  may  be  an 
affray  where  tiiere  is  no  actual  violence,  as  wlicre  a  man  arms  himself  with  dangerous 
and  unusual  weapons  in  such  a  manner  as  will  naturally  cause  a  terror  to  the  people, 
which  is  said  to  have  been  always  an  offence  at  common  law,  and  strictly  prohibited  by 
many  statutes;'  Hawk.  P.  C.  b.  1,  c.  28,  s.  1.  Burns  and  Tbnilyns  inform  us,  that  this 
tern  'affray,'  is  derived  from  the  French  wor'd  'e//Voyer,'  to  affright,  and  that  anciently  it 
meant  no  more,  '  as  where  persons  appeared  with  armour  or  weapons  not  usually  worn,  to 
the  terror  of  others.'  Burns'  Verbo,  'Affray.'  It  was  declared  by  the  Chief  Justice 
in  Sir  John  Knight's  case,  that  the  statute  of  Northamption  was  made  in  affirm- 
ance of  the  common  law;  3  Mod.  Rep.  117.  And  this  is  manifestly  the  doctrine  of 
Coke,  as  will  be  found  on  comparing  Iris  observations  on  the  word  '  affray,'  wliich  he 
defines  (3  Inst.  158)  'a  public  offence  to  the  terror  of  the  king's  subjects,  and  so  called 
because  it  affrighteth  and  maketh  men  afraid,  and  is  inquirable  in  a  leet  as  a  common 
nuisance,'  with  his  reference  immediately  thereailer  to  this  statute  and  his  subsequent 
comments  on  it  (3  Inst.  160),  where  he  cites  a  record  of  the  29th  year  of  Ed.  I.  show- 
ing what  had  been  considered  the  law  then.  Indeed  if  those  acts  be  deemed  by  the  com- 
mon law,  crimes  and  misdemeanors  which  are  in  violation  of  the  public  rights  and  of  the 
duties  owing  to  the  community  in  its  social  capacity,  it  is  difficult  to  imagine  any  which 
more  unequivocally  deserve  to  be  so  considered  than  the  acts  charged  upon  this  defendant. 
They  attack  directly  that  public  order  and  sense  of  security  which  it  is  one  of  the  first 
objects  of  the  common  law,  and  ought  to  be  of  the  law  of  all  regulated  societies,  to  preserve 
inviolate;  and  they  lead  almost  necessarily  to  actual  violence.  Nor  can  it  for  a  moment 
be  supposed  that  such  acts  are  less  mischievous  here,  or  less  the  proper  subjects  of  legal 
repreliension,  than  they  were  in  the  country  of  our  ancestors.  Tlie  bill  of  rights  in  this 
state  secures  to  every  man  indeed  the  right  to  '  bear  arms  for  the  defence  of  the  state.' 
While  it  secures  him  a  right  of  which  he  cannot  be  deprived,  it  holds  forth  the  duty  in 
execution  of  which  that  right  is  to  be  exercised.  If  he  employ  those  arms  which  he 
ought  to  wield  for  the  safety  and  protection  of  Jiis  country,  to  the  annoyance  and  tenor 
and  danger  of  its  citizens,  he  deserves  but  the  severer  condenmation  for  the  abuse  of  the 
high  privilege  with  which  he  has  been  invested. 

"It  was  objected  below,  and  the  objection  has  been  also  urged  here,  that  the  court  erred 
in  admitting  evidence  of  the  declarations  of  the  defendant,  set  forth  in  the  case,  because 
those  or  some  of  them  at  least,  were  acknowledgments  of  a  different  offence  from  that 
charged.  But  these  declarations  were  clearly  proper,  because  they  accompanied,  explained 
and  characterized  the  very  acts  charged.  Tiiey  were  not  received  at  all  as  aduiissions 
either  of  the  offence  under  trial  or  any  other  offence.  They  were  constituent  parts  of  that 
offence. 

"It  has  been  remarked  that  a  double-barrelled  gun,  or  any  other  gun,  cannot  in  this 
country  come  under  the  description  of  '  unusual  weapons,'  for  there  is  scarcely  a  man  in 
the  community  who  docs  not  own  and  occasionally  use  a  gun  of  some  sort.  But  we  do 
not  feci  the  force  of  this  criticism.  A  gun  is  an  '  unusual  weajion'  wherewith  to  be  armed 
and  clad.  No  man  amongst  us  carries  it  about  with  him  as  one  of  liis  every  day  accoutre- 
ments— as  a  part  of  his  dress — and  never,  we  trust,  will  the  day  come  when  any  deadly 
Weapon  will  be  worn  or  wielded  in  our  peace-loving  state,  as  an  ap|)endage  of  manly  equip- 
ment. But  although  a  gun  is  an  '  unusual  weapon,'  it  is  to  be  remembered  that  the  carry- 
ing of  a  gun,  per  se,  constitutes  no  offence.     For  any  lawful  purpose,  either  of  business  or 


496  OFFEXCES  AGAI\ST  SOCIETY. 

aforesaid,  and  in  the  said  highway  and  before  the  citizens  aforesaid, 
did  openly  and  publicly  declare  a  purpose  and  intent,  one  J.  H.  R. 
and  other  good  citizens  of  the  state  then  and  there  being  in  the  peace 
of  God  and  the  state,  to  beat,  wound,  kill  and  murder,  which  said 
purpose  and  intent  the  said  R.  S.  H.  so  openly  armed  and  exposed 
and  declaring,  then  and  there  had  and  entertained,  by  which  said 
arming,  exposure,  exhibition  and  declarations  of  the  said  R.  S.  H. 
divers  good  citizens  of  the  state  were  terrified  and  the  peace  of  the 
state  endangered,  to  the  evil  example,  &c.,  to  the  terror  of  the  people, 
and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Carrying  a  dangerous  iceapon,  under  Indiana  Rev.  Stat.(r) 

That  on,  &c.,  at,  &c.,  and  on  divers  other  days  and  times,  &-c.,  A. 
B.  did  then  and  there  unlawfully  carry  concealed  in  his  pocket,  a 
certain  dangerous  weapon,  viz.  a  certain  pistol,  he  not  being  a  trav- 
eller, contrary,  &.c.     {Conclude  as  in  book  1,  chap.  3). 

Maliciously  firing  guns  into  the  house  of  an  aged  woman  and  hilling  a 
dog  belonging  to  the  house. {s) 

That  R.  T.  and  J.  L.,  late  of,  &c.,  on,  &c.,  with  force  and  arms  at 
the  house  of  one  S.  R.  an  aged  woman,  situate  in  the  county  afore- 
said, did  then  and  there  wickedly,  mischievously  and  maliciously, 
and  to  the  terror  and  dismay  of  the  said  S.  R.,  fire  several  guns,  and 
then  and  there  did  shoot  and  kill  a  dog  belonging  to  said  house,  with- 
out any  legal  authority,  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Breach  of  peace,  tumultuous  conduct,  ^'C.,in  Vermont.{t) 
Tliat  H.  B.,  &.C.,  on,  &c.,  and  on  divers  other  days  and  times  be- 

amusement,  the  citizen  is  at  perfect  liberty  to  carry  his  g-iin.  It  is  the  wicked  purpose 
and  the  mischievous  result,  wiiich  essentially  constitute  tlie  crime.  He  shall  not  carry 
about  this  or  any  other  weapon  of  death  to  terrify  and  alafm  a  peaceful  people." 

(r)  State  v.  Duz:in,  G  fJiaekf  .'31. 

"  We  think  this  indictment  is  ^ood.  The  objection  that  the  pistol  is  not  stated  to  have 
been  loaded  is  insuflicient.  The  statute  says,  '  that  every  person,  &c.,  who  shall  wear  or 
carry  any  dirk,  pistol,  sword  in  cane,  or  other  dangerous  weapon  concealed,  shall,' &c. ; 
Rev.  Stats.  IB.'JH,  p.  217.    The  statute  does  not  require  that  the  pistol  should  be  loaded." 

(s)  Sustained  in  Slate  v.  Langford,  3  Hawks  3di.  Sec  for  similar  precedents,  ante,  p. 
2iG,  et  seq. 

(<)  This  count  was  sustained  in  State  v.  Benedict,  II  Verm.  237. 

Redfield  J.:  "  Whatever  was  once  thouirht  upon  this  subji'ct,  it  is  now  well  settled,  that 
mere  threats  in  words  not  written,  is  not  an  indictable  otfcncc  at  common  law.  It  is  said 
in  many  of  the  books  tliat  it  was  formerly  indictable.  This  mifrht  have  been  a!id  probably 
was  the  case  at  the  time  the  statute  in  this  st.ite  in  relation  to  the  subject  was  passed.  It 
is  there  said,  '  if  any  jierson  shall  in  any  manner  disturb  or  break  the  peace,  by  tumultuous 
and  offensive  carriafrc,  by  threateiiinjr,  fpiarrellinfr,  chailenjring^,  assaulting,  beatinjr  or 
fill  iking  any  otiicr  person,'  he  shall  be  liable,  on  conviction,  to  pay  such  fine  as  'the  court, 
t;ikiii(T  into  consideration  the  situation  of  the  i)arty  smilinjr  or  bcinfr  smitten,  the  instru- 
ment and  dariffcr  of  the  assault,  the  time,  place  and  provocation,  according  to  the  nature 
of  tlie  offence,  shall  adjudge.' 

"There  is  another  reason  why  here  more  than  at  con)mon  law,  mere  threats  should  be 
considered  an  offence  punishable  by  indietni'  iit.  At  connnon  law  the  |)erson  threatened 
can  swear  the   peace   against   llie    offender   and   obtain   redress   in   that  way,  by  obtaining 


RIOT,   AFFRAY,  &C.  4{y7 

tween  thnt  date  and  the  time  of  this  presentment,  with  force  and 
arms  at,  &c.,  did  greatly  disturb  and  break  the  peace  by  tumuUuous 
and  offensive  carriage  and  by  threatening,  quarrelling  and  cliallenging, 
and  by  lying  in  wait  for  one  S.  B.,  and  by  threatening  to  kill  the  said 
S.  B.,  to  the  great  disquiet,  terror  and  alarm  of  the  said  S.  B.  and 
other  good  citizens  of  this  state,  and  other  wrongs  then  and  there  did, 
to  the  evil  example,  &c.,  contrary,  &c,  [Conclude  us  in  book  1, 
chap.  3). 

Rejuswg  to  aid  a  constable  in  quelling  a  riol.{ii) 

That  heretofore,  to  wit,  on,  &c.,  at,  &c.,  divers  disorderly  persons 
to  the  number  of  twenty  and  more,  to  the  jurors  aforesaid  as  yet  un- 
known, then  and  there  did  unlawfully,  riotously  and  routously 
assemble  and  gather  together  to  disturb  the  peace  of  our  lady  the 
queen,  and  being  then  and  there  so  unlawfully,  riotously  and  rout- 
ously assembled  and  gathered  together,  did  commit  divers  outrages, 
to  the  great  terror  of  all  the  liege  subjects  of  our  said  lady  the  queen, 
as  well  inhabiting  and  residing  as  passing  and  repassing  there,  and 
against  the  peace  of  our  said  lady  the  queen,  her  crown  and  dignity  ; 
and  the  jurors  aforesaid  do  further  present,  that  one  D.  H.  then  and 
there  being  a  constable  of  and  for  the  county  aforesaid,  and  in  the 
due  execution  of  his  said  office  then  and  there  did  endeavour  to  pre- 
vent and  restrain  the  said  persons  so  assembled  and  committing  sucli 
outrages  as  aforesaid,  from  continuing  to  make  the  said  riot  and 
breach  of  the  peace,  and  him  the  said  D.  H.  being  such  constable  as 
aforesaid,  and  so  acting  according  to  the  duty  of  his  said  office,  the 
said  persons  so  unlawfully,  riotously  and  routously  assembled  and 
gathered  together  and  disturbing  the  peace  of  our  said  lady  the  queen, 
with  force  and  arms  did  then  and  there  violently,  forcibly  and  unlaw- 
fully resist  and  obstruct  in  the  execution  of  his  duty;  and  that  he  the 
said  D,  II.  being  such  constable  as  aforesaid,  thereupon,  being  then 
and  there  on  the  day  and  in  the  year  aforesaid,  in  the  parish  afore- 
said in  the  county  aforesaid,  did  in  his  proper  person  apply  to  one 
T.  B.,  late,  &c.,  being  then  and  there  present,  and  in  her  majesty's 
name  did  then  and  there  on  the  day  and  in  the  year  aforesaid,  at,  &c., 
charge  and  require  the  said  T,  B.  to  aid  and  assist  him  the  said  D.  H. 
in  the  execution  of  his  office  and  the  preservation  of  the  peace  of 
our  said  lady  the  queen,  and  for  securing  the  said  persons  so  unlaw- 
fully, riotously  and  routously  assembled  to  disturb  the  queen's  peace 
as  aforesaid,  still  then  and  there  continuing  to  resist  and  obstruct  the 
said  D.  H.  in  the  due  execution  of  his  office,  in  order  to  their  being 
dealt  with  according  to  law;  yet  he  the  said  T.  B.  not  regarding  his 
duty  in  this  respect,  and  .then  and  there  well  knowing  the  said  D.  H. 
was  such  constable  as  aforesaid,  and  so  in  the  execution  of  his  duty 
as  aforesaid,  to  wit,  on,  &c.,  at,  &c.,  with  force  and  arms,  unlawfully, 

security  against  the  commission  of  tlio  offence  threatened.  This  mode  of  primitive  justice 
has  not  been  much  resorted  to,  if  inded  it  exists  in  tliis  state.  It  is  believed  the  legrishitiire 
intended  tiie  remedy  here  given  to  supersede  its  necessity.  The  sending  of  threatening 
letters  is  an  otfciice  of  a  different  character." 

(u)  R.  V.  Brown,  1  C.  ifc  M.  175. — Verdict,  guilty. 

42* 


498  OFFENCES  AGAINST  SOCIETY. 

obstinately  and  contemptuously  did  neglect  and  refuse  to  aid  and 
assist  the  said  D.  H.  for  the  purpose  and  on  the  occasion  aforesaid,  in 
the  maimer  he  the  said  T.  B.  was  requested,  charged  and  commanded 
to  do  as  aforesaid,  or  in  any  other  manner  whatever,  contrary  to  his 
duty  m  that  behalf,  in  manifest  contempt  of  our  said  lady  the  queen 
and  her  laws,  to  the  great  hinderance  of  justice,  to  the  evil  example, 
&c.,  and  against,  &c.     {Conclude  as  i?i  book  I,  chap.  3). 

Refusing  to  assist  a  constable  in  carrying  offender  to  p-is(m.{v) 

That  whereas  a  certain  E.  E.,  late  of  Philadelphia  county  afore- 
said, spinster,  on,  &c.,  at,  &c.,  was  duly  arrested,  on  suspicion  of  hav- 
ing teloniously  talien,  stolen  and  carried  away  eight  yards  cambric, 
&c.,  of  the  goods  and  chattels  of  a  certain  D.  M.,  and  tlien  and  there 
did  appear  in  her  proper  person  before  E.  T.,  Esq.,  one  of  his  majes- 
ty's justices  of  the  peace  in  the  said  County  of  Philadelphia  to  keep, 
and  also  divers  trespasses,  felonies  and  other  misfeasances  in  the  said 
couiiiy  perpetrated,  to  hear,  try  and  determine,  assigned,  to  be  ex- 
amined touching  the  said  lelony  ;  and  whereas  the  aforesaid  E.  T., 
the  dtiy  and  year  aforesaid  at  the  county  aforesaid,  one  of  his  majesty's 
justices  as  aforesaid  being,  did  make  his  warrant  of  commitment  in 
writing,  with  the  seal  of  him  the  said  E.  T.  sealed,  bearing  date  the 
day  and  year  aforesaid,  to  the  sheriff  or  keeper  of  the  common  gaol 
of  the  County  of  Philadelphia  directed,  by  which  it  was  commanded 
the  said  sherifi'  or  keeper  of  the  comn)on  gaol  aforesaid,  that  he  should 
receive  into  his  custody  the  body  of  the  said  E.  E.,  who  was  charged 
with  the  felony  aforesaid,  and  her  safely  keep,  till  she  should  be 
Ironi  thence  delivered  by  due  course  of  law,  which  said  warrant  of 
commitment  with  the  body  of  her  the  said  E.  E.,  the  said  E.  T,  then 
and  there  did  deliver  to  a  certain  P.  S.,  one  of  the  constables  of  the 
township  of  Lower  Dublin  in  the  county  aforesaid,  then  and  there 
being  by  him  to  be  carried  to  the  common  gaol  of  the  said  county, 
and  there  to  be  safely  delivered  to  the  sheriif  of  the  said  county  or 
the  keeper  of  the  gaol  of  the  said  county,  in  due  form  of  law,  and  that 
the  aforesaid  P.  S.  then  and  there  did  take  and  receive  the  said  E.  E. 
into  his  custody,  and  the  said  P.  S.,  one  of  the  constables  as  atbresaid, 
then  and  there  being,  then  and  there  did  require  and  in  the  name  of 
our  said  lord  the  now  king,  did  command  a  certain  J.  W.,  late  of  the 
County  of  Philadelphia,  farmer,  then  and  there  to  aid  and  assist  him 
the  said  P.  S.  to  carry  and  convey  the  body  of  the  said  E.  E.  to  the 
common  gaol  of  the  County  of  Philadelphia:  Nevertheless  the  said 
J.  W.,  to  aid  and  assist  him  the  said  P.  S.  to  carry  and  convey 
the  body  of  the  said  E.  E.  to  the  common  gaol  of  the  said  County  of 
Philadelphia,  contemptuously  did  refuse  and  deny,  to  the  manifest 
contempt  of  our  said  lord  the  now  king  and  his  law,  to  the  evil  and 
pcirnicious  example  of  all  others  in  such  case  olfending,  and  against, 
&.C.     {Conclude  as  in  book  1,  chap.  3). 

(c)  This  form  was  prepared  ia  17G0,  by  Benjamin  Chew,  tlic  then  attorney-general  of 
Pennsylvania. 


RESCUE,  &c.  499 

Assault  and  rescue. (ir) 

That  on,  &c.,  at,  &c.,  J.  H.,  Esq.,  then  and  still  being  one  of  the 
justices  of  this  commonwealth,  the  peace  in  the  said  county  to  keep, 
assigned,  and  also  to  hear  and  determine  divers  felonies  and  misde- 
meanors in  the  same  county  committed,  made  his  warrant  in  writing 
under  his  hand  and  seal,  directed  to  the  high  sheriff  of  the  said  county, 
and  to  any  constable  therein,  commanding  him  to  take  and  arrest  the 
body  of  a  certain  J.  R.,  and  him  to  bring  before  the  said  J.,  or  some 
other  justice  of  the  peace,  there  to  answer  a  certain  charge  of  forcibly 
opposing  one  J.  F.,  constable  of  the  said  city,  in  the  execution  of  his 
duty  before  that  time  made,  which  warrant  was  delivered  to  J.  W., 
then  one  of  the  constables  for  the  City  of  Philadelphia  in  the  county 
aforesaid,  to  be  executed  in  due  form  of  law,  by  virtue  of  which  same 
warrant  the  aforesaid  J.  W.  afterwards,  to  wit,  on,  &c.,  at,  &c.,  afore- 
said, and  within  the  jurisdiction  of  this  court,  did  take  and  arrest  the 
body  of  J.  R.  in  the  warrant  aforesaid  named,  and  him  the  said  J.  R. 
in  his  custody,  by  virtue  of  the  said  warrant,  then  and  there  had  ;  and 
that  J.  F.  and  J.  H.,  both  late  of  the  county  aforesaid,  yeomen,  after- 
wards, to  wit,  on,  &c.,  with  force  and  arms,  &c.,  at,  &c.,  in  and  upon 
the  same  J.  W.  then  and  there  as  aforesaid  being  one  of  the  consta- 
bles of  the  same  city,  in  the  peace  of  God  and  this  commonwealth, 
and  in  the  execution  of  his  said  office  then  and  there  being,  with 
force  and  arms  an  assault  did  make,  and  him  the  said  J.  R.,  out  of 
the  custody  of  the  said  J.,  and  against  the  will  of  the  said  T.  W.,  then 
and  there  with  force  and  arms  unlawfully  did  rescue  and  put  at  large, 
to  go  where  he  would,  and  that  the  said  J.  F.  and  J.  C.  the  said  J.  R., 
out  of  the  custody  of  the  said  J.  W.  and  against  the  will  of  the  said 
J.  W.,  then  and  there  with  force  and  arms  did  rescue  and  put  at  large, 
to  the  evil  example,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Against  tiro  for  a  rescue,  one  of  them  being  in  custody  of  an  officer  of 
the  marshaPs  court,  upon  process,  ^c.{x) 

That  on,  &c.,  our  said  lord  the  king,  by  his  writ  issued  out  of  the 
court  of  our  said  lord  the  king  of  his  palace  of  Westminster,  under 
the  seal  of  the  said  court,  bearing  date  the  same  day  and  year  afore- 
said, directed  to  the  bearers  of  the  verges  of  the  household  of  our  said 
lord  the  king,  officers  and  ministers  of  the  court  of  our  said  lord  the 
king  of  his  palace  of  Westminster  and  every  of  them,  did  command 

((o)  Drawn  in  1786,  by  Mr.  Bradford. 

{Rescue  by  third  persons).  Rescue  is  where  a  third  person  procures  or  assists  the  escape 
of  a  prisoner;  and  this  is  at  the  least  criminal,  in  the  same  degree  with  the  act  of  a  parly 
breaking  prison.  In  case  of  treason,  a  stranger  rescuing  a  traitor  is  himself  guilty  of 
treason ;  Hawk.  b.  2,  c.  21,  s.  7 ;  in  case  of  felony,  he  is  guilty  of  felony,  if  the  princijKil 
•  he  convicted;  and  in  all  cases  he  is  guilty  of  a  high  misdemeanor  at  common  law,  for 
which  he  may  be  prosecuted,  whatever  may  be  the  fate  of  the  party  whom  he  aided  ;  Hawk, 
b.  2,  c.  21,  s.  6,  At  common  law,  unsuccessful  attenifits  to  procure  the  esca()e  of  a  felon, 
were  not  felonies;  R.  v.  Tillcy,  2  Leach  671  ;  R.  v.  Stanly,  R.  &.  R.  C.  C.  432;  though 
where  the  attempt  is  in  any  degree  successful,  it  becomes  indictable;  People  c.  Tompkins, 
9  Johns.  70.  See  as  to  forms  for  same,  Index,  titles,  "  Escape,"  "Attempts  to  Commit  Of. 
fences,"  &.c. 

{X)  Stark.  C.  P.  463. 


500  OFFEVCRS  AGAINST  SOCIETY. 

tii(;m  and  every  of  them,  that  they  should  take  or  one  of  them  should 
take,  by  their  bodies,  R.  A.  and  W.  C,  if  they  should  be  found  within 
the  jurisdiction  o(  the  court  aforesaid,  and  them  safely  keep,  so  that 
they  might  have,  or  one  of  them  might  have,  then*  bodies  before  the 
judges  of  the  court  aforesaid,  at  the  next  court  of  the  palace  of  our 
said  lord  the  king  of  Westminster  aforesaid,  on,  &c.,  then  next  fol- 
lowing, to  be  holden  at  S.  in  the  Count  of  Surrey,  to  answer  T.  W.  of 
a  plea  of  trespass  upon  the  case,  to  the  damage  of  the  said  T.  W.  of 
pounds,  which  said  writ  afterwards,  and  before  the  delivery  there- 
of, &c.,  which  same  writ  so  endorsed,  afterwards,  and  before  the  return 
ofthesame,  to  wit,  on,  &c.,  at,  &c.,  and  within  the  jurisdiction  of 
that  court,  was  delivered  to  one  G.  N.,  then  one  of  the  bearers  of  the 
verges  of  our  said  lord  the  king,  officers  and  ministers  of  the  court  of 
our  said  lord  the  king,  to  be  executed  in  due  form  of  law ;  by  virtue 
of  which  said  writ,  the  said  G.  N.  afterwards,  and  before  the  return 
thereof,  to  wit,  on,  &c.,  at,  &c.,  and  within  the  jurisdiction  of  that 
court,  did  take  and  arrest  the  body  of  the  said  R.  A.  in  the  writ  afore- 
said named,  and  him  the  said  R.  A.  in  his  custody,  by  virtue  of  the 
said  writ,  then  and  there  had  ;  and  that  the  said  R.  A.,  late  of  the 
parish  aforesaid  in  the  county  aforesaid,  yeoman,  and  C.  D.,  late  of 
the  same,  blacksmith,  afterwards,  to  wit,  on,  &c.,  with  force  and  arms 
at,  &c.,  in  the  county  and  within  the  jurisdiction  aforesaid,  in  and 
upon  the  said  G.  N.  tlien  and  there  as  aforesaid  being  one  of  the 
bearers  of  the  verges  of  the  household  of  our  said  lord  the  king,  officers 
and  ministers  of  the  court  aforesaid,  and  liaving  the  said  R.  A.  incus- 
tody  for  the  cause  aforesaid,  and  in  the  due  execution  of  his  said 
office,  then  and  there  also  being,  did  make  an  assault,  and  him  the 
said  G.  N.  then  and  there  did  beat,  wound  and  ill-treat;  and  that  the 
said  C.  D.  him  the  said  R.  A.,  out  of  the  custody  of  the  said  G.  N., 
and  against  the  will  of  the  said  G.  N.,  then  and  there  with  force  and 
arms  unlawfully  did  rescue  and  put  at  large  to  go  whithersoever  he 
would;  and  that  the  said  R.  A.,  himself  out  of  the  custody  of  the  said 
G.  N.,  and  against  the  will  of  the  said  G.  N.,  then  and  there  with 
force  and  arms  unlawfully  did  rescue  and  escape  and  go  at  large 
vHiithersoever  he  would,  to  the  great  hinderance  and  obstruction  of 
justice,  in  contempt  of  our  said  lord  the  king  and  liis  laws,  to  the 
great  damage  of  the  said  G,  N.,  and  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

{Add  a  count  for  a  common  assault). 

Assault  and  rescuing  goods  seized  as  a  distress  for  rent  after  a  fraudu- 
lent removaI.{y) 

That  on,  &.C.,  and  continually  afterwards  until,  &c.,  one  M.  E.  did 

(y)  Dickinson's  Q.  S.  6l,li  ed.  370;  sec  St;irk.  C.  P.  389.  By  8  Men.  c.  M,  it  is  enacted, 
tli.'it  in  iiny  case  any  lessee  of  any  messuages,  tenements,  &c.,  on  demise  whereof  any  rents 
sliall  Ijc  reserved  or  made  payalilc,  shall  fraudulently  and  clundestinely  convey  and  carry 
off  from  sueh  demised  premises,  his  goods  and  (•hattcis,  with  intent  to  |)revent  tlic  landlord 
or  lessor  from  distraining  the  same  for  arrears  of  the  rent,  the  lessor  or  landlord  may  take 
and  seize  sueh  goods  and  chattels  wherever  they  may  hi^  found,  as  a  distress,  and  sell  them 
in  the  same  way  as  if  they  had  been  regularly  distrained  on  the  premises;  and  by  2  Geo. 
II.  c.  l!i,  s.  I,  tJie  time  is  enlarged  to  thirty  days. 


RESCUE,  &C.  501 

hold  of  one  J.  W,,  a  certain  room  or  apartment  with  the  appurte- 
nances, being  part  and  parcel  of  a  certain  messuage  or  dwelling  house 
of  him  the  said  J.  W.,  situate,  &.C.,  by  virtue  of  a  certain  demise  there- 
of made  by  and  from  the  said  J.  W.  to  the  said  M.  E.  at  and  under 
the  weekly  rent  of  fifteen  shillings,  reserved  and  made  payable  by 
the  said  demise  to  the  said  J.  W.  on  the  said,  &c.,  and  that  on  the 
said,  &c.,  the  said  sum  of  fifteen  sliillings  was  due  in  arrear  and  un- 
paid for  the  rent  aforesaid,  by  virtue  of  the  said  devise  to  him  the 
said  J.  W.  And  the  jurors,  &c.,  do  further  present,  that  the  said  M. 
E.  on,  &c.,  at,  &c.,  aforesaid,  did  fraudulently  and  clandestinely  con- 
vey and  carry  off  from  the  said  demised  premises,  his  goods  and  chat- 
tels, that  is  to  say,  one  pewter  dish,  &c.,  {here  set  out  the  goods),  of 
the  value  of  the  said  sum  of  fifteen  shillings,  with  intent  to  prevent 
the  said  J.  W.,  the  lessor  aforesaid,  from  distraining  the  same  for  the 
said  rent  so  reserved,  in  arrear  due  and  unpaid  as  aforesaid;  where- 
upon the  said  J.  W.  afterwards,  and  within  the  space  of  five  days 
next  ensuing  the  said  conveying  and  carrying  off  the  said  goods,  to 
wit,  on,  &c.,  at,  &c.,  aforesaid,  did  find  the  said  goods  and  chattels, 
and  the  same  goods  and  chattels  so  found,  did  then  and  there  in  due 
form  of  law  seize  as  a  distress  for  the  said  relit  so  due  and  in  arrear 
as  aforesaid,  and  being  also  then  unpaid,  and  the  said  goods  and  chat- 
tels in  his  custody  and  possession,  for  the  cause  aforesaid,  then  and 
there  had ;  and  that  the  said  M.  E.,  late  of,  &c.,  aforesaid,  and  S.  his 
wife,  afterwards,  to  wit,  on,  &c.,  last  aforesaid,  at,  &c.,  aforesaid,  in 
and  upon  the  said  J.  W.  in  the  peace  of  God  and  our  said  lady  the 
queen  then  and  there  being,  did  make  an  assault,  and  the  said  goods 
and  chattels  (so  as  aforesaid,  for  the  cause  aforesaid,  taken  and  seized), 
out  of  the  possession,  and  against  the  will  of  the  said  J.  \V\  unlaw- 
fully and  injuriously  did  take,  rescue  and  carry  away  (the  said  sum 
of  fifteen  shillings  so  due  for  rent  as  aforesaid,  or  any  part  thereof, 
not  being  then  paid  or  satisfied  to  the  said  J.  W,),  against,  &c.  [Con- 
clude as  in  book  1,  chop.  3). 

{Add  a  count  for  a  common  assault). 

Assault  on  an  officer  of  justice,  and  taking  from  him  goods  tthich  had 
been  seized  by  him  on  executiun.{z) 

That  on,  &c.,  one  J.  D.  then  being  one  of  the  deputies  of  the  sheriff 
of  said  County  of  Suffolk,  by  virtue  of  a  certain  writ  of  attachment  to 
him  directed,  purchased  out  of  the  clerk's  ottice  of  the  Court  of  Com- 
mon Pleas  for  the  County  of  Suflblk,  in  due  form  of  law  attached 
certain  goods  and  chattels,  and  placed  the  same  in  the  care,  keeping 
and  custody  of  one  T.  J.  S.,  and  the  said  T.  then  being  lawfully  in 
possession  of  the  goods  and  chattels  aforesaid,  under  the  authority 
and  deputation  of  the  said  J.  D.  in  his  capacity  of  deputy  of  the  said 
sheriff,  and  while  the  said  T.  was  so  in  possession,  they  the  said  D. 
D.  B.,  A.  K.  and  H.  H.  F.,  at  said  Boston,  on,  &c.,  with  force  and 
arms  in  and  upon  said  T.  made  an  assault,  and  him  the  said  T.  then 


(z)  Sec  Com.  r.  Kennard,  8  Pick.  1.33,  in   which   case  the   indictment  in  the  text  wns 
used.     Tlie  defendant  met  it  by  a  special  plea,  wliich  will   be  found  hereafter  in  Book  VI. 


502 


OFFENCES  AGAINST  SOCIETY. 


and  there  beat,  braised  and  evil-treated,  and  with  force  and  a  strong 
hand  deprived  the  said  T.  of  the  care,  custody  and  possession  of  tlie 
goods  and  chattels  aforesaid,  and  other  wrongs  and  injuries  to  said 
T.  then  and  there  with  like  force  did,  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

Rescuing  goods  distrained  for  rent  of  a  house.{a) 

That  on,  &c.,  one  M.  D.,  in  due  form  of  law  did  take  and  distrain 
one  oak  table  of  the  value  often  shillings,  and  one  feather  bed  of  the 
value  of  thirty  shillings,  and  one  clock  of  the  value  of  two  pounds,  of 
the  goods  and  chattels  of  one  W.  H.,  labourer,  then  being  in  a  certain 
dwelling  house  of  the  said  M.  D.  situate  in,  &c.,  aforesaid,  which 
same  distress  was  taken  by  him  the  said  M.  D.  for  the  sum  of  five 
pounds,  being  then  due  for  rent,  for  one  whole  year,  in  arrear  from 
the  said  W.  H.,  to  him  the  said  M.  D.  for  the  house  aforesaid;  and 
that  the  said  M.  D.,  the  said  goods  and  chattels  thpn  and  there  had 
and  lawfully  detained  in  his  custody  for  the  cause  aforesaid.  And 
the  jurors,  &c.,  do  further  present,  that  N.  W.,  late  of,  &c.,  afterwards, 
to. wit,  on,  &c.,  with  force  and  arms  at,  &c.,  aforesaid,  the  said  goods 
and  chattels  so  as  aforesaid  by  the  said  M,  D.  taken  and  distrained, 
and  in  the  custody  of  him  the  said  M.  D.  then  and  there  lawfully 
being,  from  and  out  of  the  custody  and  against  the  will  of  him  the 
said  M.  D.,  then  and  there  unlawfully  and  injuriously  did  rescue, 
take  and  carry  away  (the  said  sum  of  five  pounds  for  the  rent  in 
arrear  as  aforesaid  being  due,  nor  any  part  thereof  being  then  paid), 
against,  &c.     [Conclude  as  in  book  I,  chap.  3). 

Riot  and  rescue  of  fugitive  slaves  from  their  master  s.{b) 

That  on,  &c.,  at,  &c.,  two  persons  named  H.  N.  and  A.  B.,  held  to 
service  or  labour  in  the  State  of  Maryland,  under  the  laws  thereof, 
the  said  H.  and  A.  being  the  property  of  one  J.  H.  K.  of  the  said 
State  of  Maryland,  and  the  said  H.  and  A.  having  escaped  into  the 
said  State  of  Pefinsylvania,  were  then  and  there,  to  wit,  on,  &c.,  at, 
&c.,  arrested  by  the  said  J.  H.  K.,  the  owner  of  the  said  H.  and  A., 
{or  if  the  case  be  so,  by  one  G.,  the  authorized  agent  of  the  said  H. 
//ie  0/6" ;ier),  as  fugitives  from  service  or  labour  from  the  said  State 
of  Maryland.  And  the  said  II.  and  A.  were  then  and  there,  to  wit, 
on,  &c.,  aforesaid,  at,  &c.,  lawfully  in  the  custody  and  under  the  con- 
trol of  the  said  J.  H.  K.,  to  whom  their  service  or  labour  was  due. 
And  the  jurors  aforesaid  do  further  present,  that  J.  C,  &.C.,  et  al., 


(«)  Dickinson's  Q.  S.  Gth  cd.  370. 

Tlie  civil  remedy  by  2  Win.  &  .Mary,  scss.  1,  c.  5,  s.  4,  vvhorol)y  trel)le  damatrcs  and 
costs  are  recoverable  lor  pound  brencli  or  rescue  of  p;oods  distrained,  is  tlie  usual  re- 
medy resorted  to,  but  nevertbcless,  an  indictment  will  lie  at  all  events,  if  breach  of  the  peace 
occurs. 

(//)  This  count  was  sustained  in  Com.  v.  ClcUans,  tried  before  Judge  ITcphurn  in  Car- 
lislf,  IHtH,  and  under  which  the  defendants  were  sentenced,  after  the  indictment  havinsj 
Iwen  closely  canvassed  by  eminent  counsel.  Subsequently  the  sentence  was  reversed  by 
the  Supreme  ('ourt  on  the  ground  that  the  ptinishmetit  was  not  regular,  no  exception 
being  taken  to  the  correctness  of  the  indictment. 


PRISON   BREACH,    &C.  503 

{here  insert  the  names  and  additions  of  all  persons  known  to  be 
guilty  of  the  offence),  together  with  divers,  to  wit,  tiiirty  other  per- 
sons to  the  jurors  aforesaid  as  yet  unknown,  being  rioters,  routers 
and  disturbers  of  the  peace,  on,  &c.,  at,  &c.,  with  force  and  arms,  to 
wit,  with  clubs,  staves  and  other  hurtful  weapons,  did  unlawfully, 
riotously,  routously  and  tumultuously  assemble  and  meet  together,  to 
disturb  the  peace  of  the  said  commonwealth,  and  then  and  there  un- 
lawfully, riotously,  routously  and  tumultuously  to  seize,  carry  away 
and  rescue  the  said  H.  and  A.,  fugitives  from  service  or  labour  as 
aforesaid,  from  and  out  of  the  custody  and  from  under  the  control  of 
the  said  J.  H.  K.;  and  then  and  there  also  unlawfully,  riotously, 
routously  and  tumultuously  to  aid  tlie  said  H.  and  A.,  fugitives  from 
service  or  labour  as  aforesaid,  to  escape  from  the  said  J.  H.  K.  And 
the  said  J.  C,  &c.,  together  with  the  said  other  persons  to  the  jurors 
aforesaid  as  yet  unknown,  on,  &c.,  at,  &c.,  being  so  then  and  there 
assembled  ar>d  met  together  as  aforesaid,  with  force  and  arms  as 
aforesaid,  unlawfully,  riotously,  routously  and  tumultuously  did  seize, 
carry  away  and  rescue  the  said  fugitives  from  service  or  labour,  to 
wit,  the  said  H.  and  A.,  from  and  out  of  the  custody  and  from  under 
the  control  of  the  said  J.  H.  K.,  and  did  thereby  then  and  there  un- 
lawfully, riotously,  routously  and  tumultuously  cause  and  procure  the 
said  H.  and  A.  to  escape  l>om  and  out  of  the  custody  and  from  under 
the  control  of  the  said  J.  H.  K.,  to  the  great  damage  of  the  said  J.  H. 
•K.,  in  contempt,  &c.,  to  the  great  terror  and  disturbance  not  only  of 
the  peaceable  people  and  inhabitants  of  the  said  commonwealth  there 
passing  and  repassing,  residing  and  being,  but  of  all  others,  &c.,  con- 
trary, &c.,  and  against,  &,c.     {Conclude  as  in  book  1,  chap.  3). 

Prison  breach.(c) 

That  on,  c^c,  at  the  district  aforesaid,  R.  P.,  Esq.,  Judge  of  the 
District  Court  of  the  said  United  States  issued  his  \varrant  under  his 
hand  and  seal  to  W.  N.,  Esq.,  marshal  of  the  said  district  directed, 
and  the  said  warrant  to  the  said  marshal  then  and  there  delivered, 
wherein  and  whereby  the  said  marshal  was  directed  that  he  take  the 
body  of  J.  E.,  late  of  Northampton  County  in  the  same  district,  yeo- 
man, and  bring  him  before  the  said  R.  P.,  to  find  sufficient  sureties 
for  his  the  said  J.  E.'s  personal  appearance  at  the  Circuit  Court  of  the 
said  United  States  for  the  middle  circuit  and  district  aforesaid,  at  the 
then  next  stated  session  thereof,  to  be  holden  at  Philadelpliia,  on,  &.C., 
to  answer  a  charge  of  being  concerned  in  an  unlawful  combination 
and  conspiracy  to  impede  the  operation  of  a  law  of  the  said  United 
States,  entitled  an  act  to  lay  and  collect  a  direct  tax  within  the  United 
States,  and  to  such  other  matters  as  should  in  behalf  of  the  said  United 
States  be  then  and  there  objected  against  him,  and  further  to  be  dealt 
with  according  to  law.  Which  said  W.  N.,  the  marshal  aforesaid, 
afterwards,  that  is  to  say,  on  the  seventh  day  of  March,  in  the  year 
aforesaid,  at  the  district  aforesaid,  by  virtue  of  the  said  warrant,  did 

(c)  U.  S.  V.  Eyerman;  U.  S.  Circuit  Court  for  Pennsylvania,  1799.  The  biU  was  drawn 
by  Mr.  Rawle,  then  di;rtrict  ultorney,  and  was  sustiiincd  after  a  verdict  of  guilty. 


504  OFFENCES  AGAINST  SOCIETY. 

arrest  and  take  him  the  said  J,  E.,  and  him  the  said  J.  E.  in  his  cus- 
tody by  virtue  of  the  said  warrant  then  and  there  had.  And  the 
grand  inquest  aforesaid,  upon  their  respective  oaths  and  affirmations, 
do  further  present,  that  the  said  J.  E.,  on,  &c.,  at  the  district  afore- 
said, so  being  in  the  lawful  custody  of  him  the  said  W.  N.,  Esq., 
marshal  aforesaid,  with  force  and  arms  and  against  the  will  of  the 
said  W.  N.,  prison  did  break,  and  out  of  the  said  custody  of  the  said 
W.  N.,  the  said  marshal,  did  liberate  himself  and  go  at  large,  in  con- 
tempt of  the  said  United  States  and  the  laws  thereof  and  the  adminis- 
tration of  justice  therein,  to  the  evil  example,  &:c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Assault  on  a  constable,  SfC. 

That  A.  B.,  on,  &c.,  in  and  upon  one  E.  F.  (then  being  one  of  the 
constables  of  the  said  parish  of  C,,  in  the  said  County  of  D.,(f/)  in  the 
peace  of  God  and  the  said,  &c.,  and  in  the  due  execution  of  his  said 
office,  then  and  there  also  being),  did  make  an  assault;  and  him  the 
said  E.  F.  then  and  there  did  beat,  woimd  and  ill-treat,  so  that  his 
life  was  greatly  despaired  of,  and  other  wrongs,  &.c. 

{Add  a  count  for  a  common  assault). 

Another  form  for  same.{e) 

• 

That  R.  W.,  late  of,  &c.,  on,  &c.,  with  force  and  arms  at,  &c.,  an 
assault  did  make  upon  J.  K.  of,  &c.,  then  and  ever  since  a  constable 
of  said  town,  &c.,  legally  authorized  and  duly  qualified  to  discharge 
and  perform  the  duties  of  said  office,  and  being  then  and  there  in  the 
due  and  legal  execution  of  the  same,  and  him  the  said  J.  K.  did  then 
and  there  beat,  abuse  and  ill-treat,  and  in  the  due  and  lawful  execu- 
tion of  said  office  did  then  and  there  unlawfully  and  knowingly 
obstruct,  hinder,  resist  and  abuse,  by  assaulting,  beating,  threatening, 
pushing  and  refusing  to  submit  to  the  lawful  authority  of  him  the 
said  K.,  so  as  aforesaid  then  and  there  in  the  lawful  execution  of  his 
said  otfice,  against,  &c.,  of  evil  example,  &c.,  and  contrary,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

Second  count.  Averring  arrest  of  defendant  by  said  constable,  ^-c, 
and  proceedings  before  a  justice  of  the  peace,  upon  ichicli  defendant  was 
committed  in  defa^ilt  of  bail,  charging  resistance  by  defendant  to  the 
officer  ulien  detaining  him  in  custody. 

That  on,  &lc.,  the  said  R.  W.,  together  with  J.  B.,  C.  L.  B.  and  H. 
H.,  at,  &c.,  were  by  J.  K.  of  the  said  town  of  New  Haven,  then  and 
ever  since  a  constable  of  said  town  of  New  Haven,  legally  aiuhorized 
and  duly  qualified  to  execute  and  perforin  the  duties  of  said  office,  at 
said  town  of  New  Haven  and  within  the  precincts  of  the  said  K., 

(d)  See vStafp  ».  Downer,  8  Verm.  424. 

This  is  a  sunieieut  alle;ration  lliut  lie  was  a  conshiWc,  Stark.  C.  P.  178,  170,  187,  188; 
and  the  allefjiition  would  he  satisfied  by  evidence  that  he  acted  as  such;  (iordon's  cane, 
Leaeh  nni  ;  4  T.  R.  .306;  5  T.  \i.  607  ;  3  T.  R.  6.32. 

{f.)  This  indictment  vv;,s  prepared  by  Mr.  Kiniberly,  state's-attorney  in  New  Haven  in 
1637,  and  was  sustained  hy  the  court,  on  motion  for  arrest  of  judgment.  Sec  for  other 
forms  for  ^ame,  past,  p.  5U6-7-9. 


RESISTANCE  TO  Or^FICERS  OF  JUSTICE,  &C.  505 

constable  as  aforesaid,  lawfully  arrested  and  brought  before  T.  B.,  Esq., 
then  and  ever  since  a  justice  of  the  peace  for  New  Haven  couniy, 
duly  qualified  and  sworn,  residing  in  said  town  of  New  Haven,  at 
his  office  in  said  town  of  New  Haven,  by  virtue  of  a  warrant  then 
in  the  hands  of  said  K.,  issued  by  the  said  T.  B.,  Esq.,  as  such  justice, 
on  the  complaint  of  J.  C.  H.,  Esq.,  of  said  town  of  New  Haven,  then 
and  there  a  grand  juror  of  said  town,  charging  them  the  said  R.  W., 
J.  B.,  C.  L.  B.  and  H.  H.  with  the  crime  of  theft,  to  wit,  at  New 
Haven  aforesaid,  which  warrant  was  directed  to  the  sheriff  of  New 
Haven  county  or  his  deputy  or  either  of  the  constables  of  the  town 
of  New  Haven  in  said  county,  commanding  them  to  arrest  the 
bodies  of  tiie  said  R.  W.,  J.  B.,  C.  L.  B.  and  H.  H.  and  them  forth- 
with have  before  the  said  T.  B.,  Esq.,  a  justice  of  the  peace  for  said 
county,  or  some  other  justice  of  the  peace  for  said  county  in  said 
town  of  New  Haven,  to  answer  to  the  charges  alleged  against  them 
in  the  complaint  aforesaid  of  the  said  J.  C.  H.,  grand  juror  as  afore- 
said, and  be  dealt  with  therein  as  the  law  directs;  and  the  said  R.  W., 
J.  B.,  C.  L.  B.  and  H.  H.  were  then  and  there  by  the  said  J.  K.  as 
constable  as  aforesaid,  and  in  the  due  execution  of  his  said  office,  by 
virtue  of  said  warrant  detained  and  held  in  custody  before  said  Jus- 
tice B.,  to  wit,  at  New  Haven  aforesaid,  whilst  holding  a  Justice 
Court  for  the  examination  and  trial  upon  the  charge  aforesaid,  and 
the  said  T.  B.,  Esq.,  so  holding  a  Justice  Court  as  aforesaid  for  the 
purposes  aforesaid,  iiaving  inquired  into  the  allegations  contained  in 
said  complaint,  and  finding  it  necessary  to  adjourn  said  trial  to  a 
future  time,  did  thereupon  consider  and  order  that  they  the  said  R. 
W.,  J.  B.,  C.  L.  B.  and  H.  H.  should  become  bound  each  of  them 
with  surety  in  a  recognizance  in  the  sum  of  seventy-five  dollars  each 
to  the  treasurer  of  the  County  of  New  Haven,  that  they  should 
respectively  appear  before  him  the  said  Justice  B.  on  the,  &c.,  to 
which  time  said  trial  was  by  said  justice  adjourned,  then  and  there  to 
answer  to  said  complaint,  and  in  default  thereof  to  be  cotnmitted  to 
the  New  Haven  county  gaol ;  and  the  said  W.,  B.,  B.  and  H.  having 
neglected  and  refused  to  become  bound  and  while  so  in  the  custody 
of  the  said  K.  as  constable  as  aforesaid,  and  while  the  said  K,  was  so 
in  the  execution  of  his  said  office  as  constable  as  aforesaid,  endeavour- 
ing to  hold  and  detain  them  and  preparing  to  commit  them  to  the 
keeper  of  the  gaol  in  said  county  in  compliance  with  the  order  of 
said  court,  so  as  aforesaid  holden  by  the  said  T.  B.,  Esq.,  justice  of  the 
peace  for  New  Haven  county  as  aforesaid,  the  said  R.  VV.  did  then 
and  there  with  force  and  arms  at  the  town  of  New  Haven  aforesaid, 
well  knowing  all  the  facts  aforesaid,  wilfully  and  knowingly  resist, 
hinder,  obstruct  and  abuse  the  said  K.,  so  a  constable  of  the  town  of 
New  Haven  as  aforesaid,  and  so  in  the  execution  of  his  said  office  as 
aforesaid,  by  threatening,  assaulting,  striking  and  pushing  him  the 
said  K.,  and  refusing  to  submit  to  liis  lawful  autliority,  against,  <tc. 
[Conclude  as  in  book  1,  chap,  3). 

43 


506  OFFENCES  AGAINST  SOCIETY. 

Resistance  to  a  constable  employed  in  the  arrest  of  a  fugitive  charged 
with  larceny.{f) 

That  H.  G.  T.,  F.  S.,  W.  W.,  H.  H.  S.  and  R.  W.,  &c.,  together 
with  divers  others  to  the  number  of  fifty,  evil  disposed  persons,  whose 
names  are  to  this  inquest  as  yet  unknown,  on,  &c.,  at,  &c,,  with  force 
and  arms,  did  unlawfully,  riotously  and  routously  assemble  together 
to  disturb  the  peace,  and  being  so  assembled,  in  and  upon  one  J.  S., 
then  and  there  being  one  of  the  constables  of  the  City  of  Boston,  in 
the  due  and  lawful  discharge  of  the  duties  of  his  office  as  constable 
of  said  city,  being  in  the  service  of  a  legal  precept  to  him  directed, 
and  having  then  and  there  lawfully  one  G.  L.  otherwise  called  A.  M. 
in  his  custody  as  a.  prisoner  to  be  examined  on  a  charge  of  larceny 
by  the  Police  Court  of  said  city,  according  to  a  certain  lawful  precept 
to  him  directed  and  issued  by  said  Police  Court  under  its  seal,  upon  a 
complaint  made  and  sworn  to  according  to  law,  said  Police  Court 
then  and  there  having  lawful  jurisdiction  in  the  premises,  and  said 
S.  then  and  there  being  in  the  peace  of  the  commonwealth,  an  assault 
did  make  unlawfully,  riotously  and  routously,  and  him  the  said  S.  did 
then  and  there  unlawfully,  riotously  and  violently  beat,  wound  and 
ill-treat,  and  resist,  hinder  and  obsuuct  him  in  the  discharge  of  the 
duties  of  liis  office  of  constable,  and  then  and  there  imlawfully,  riot- 
ously and  routously  did  attempt  to  rescue  said  L.  from  the  custody  of 
said  S.,  and  did  tlien  and  there  unlawfully,  riotously  and  routously 
throw  a  dangerous  missile  called  a  brick-bat  at  and  towards  said 
S.,  which  missile  hit  and  dangerously  wounded  one  A.  G.  then  and 
there  being  one  of  the  watchmen  of  said  City  of  Boston,  who  then 
and  tliere  was  acting  as  an  assistant  of  said  S.,  constable  as  aforesaid  ; 
and  other  wrongs  and  injuries  unlawfully,  riotously  and  routously 
did  and  committed,  &c. 

Resistance  to  a  peace  officer  in  the  performance  of  his  duties ;  form  used 
in  Boston. 

That  A.  B,,  &c.,  on,  &c,,  at,  &c.,  with  force  and  arms,  in  and  upon 
one  then  and  there  in  the  peace  of  said  commonwealth  being, 

an  assault  did  make,  lie  the  said  also  then  and  there  being  a 

peace  oliicer,  called  and  then  and  there  also  being  in  the  due 

and  lawful  discharge  of  his  duties  as  such  officer.     And  so  the  jurors 
aforesaid,  on  their  oath  aforesaid,  do  say  and  present,  that  the  said 
at  Boston  aforesaid,  on  the  said  day  of  said  with 

force  and  arms  assaulted  the  said  as  such  officer,  and  hindered, 

resisted  and  obstructed  him  in  the  discharge  of  his  lawful  duties,  in 
manner  and  form  aforesaid,  against,  &,c.  {Conclude  as  in  book  1, 
chap.  3). 

(/)  For  what  purpose  the  special  matter  in  tliis  case  is  so  elaborately  set  out,  docs  not 
appear,  tl]ou<!;-h  it  was  conceded  by  the  attorney-general  that  it  need  not  have  contained 
more  than  the  mere  alle<ration  of'  a  riotous  assault  on  an  ofiicer  while  in  execution  of  a 
Jepal  warrant;  ("orn.  v.  Tracy,  5  Mete.  530.  It  was  held  by  the  court  that  the  averment 
as  to  tlic  warrant,  &c.,  was  supported  l)y  evidence  that  the  officer  was  in  tlic  service  of  a 
lejrai  precept,  and  had  the  defendant  in  his  custody  as  a  prisoner,  to  be  examined  on  a 
charge  of  larceny  in  another  state,  and  of  being  a  fugitive  from  justice. 


RESISTANCE  TO  OmCERS  OF  JUSTICE,  &C.  507 

Resi'stavce  to  the  marshal  of  the   United  Slates  hi  the  service  of  a 
writ  of  arrest.{g) 

That  heretofore,  to  wit,  on,  &c.,  a  certain  judicial  writ  of  arrest, 
directed  to  the  marshal  of  the  said  District  of  Pennsylvania,  was  duly- 
awarded  and  issued  by  and  out  of  the  District  Court  of  the  United 
States  in  and  for  the  said  District  of  Pennsylvania,  in  a  certain  cause, 
civil  and  maritime,  between  G.  0.,  A.  W.,  A.  R.  and  D.  C,  libellants, 
and  E.  S.  and  E.  W.,  surviving  executrives  of  D.  R.,  Esq.,  deceased, 
respondents,  which  said  judicial  writ  of  arrest  was  duly  delivered  to 
J.  S.,  Esq.,  an  officer  of  the  said  United  States,  to  wit,  marshal  of  the 
said  District  of  Pennsylvania,  at  Philadelphia  in  the  district  atbresaid, 
on  the  said  in  the  year  aforesaid,  and  was  of  the  purport  and 

effect  following,  that  is  to  say  : 

"  United  States,  ^ 

District  of  Pennsylvania,  ) 
r  n        "  Richard  Peters,  Judge  of  the  District  Court  of  the 

fSEAL 

L         'J  United  States  in  and  for  the  District  of  Penn- 

sylvania, to  the  Marshal  of  the  same  district, 
Greeting : 
"  Whereas  heretofore,  to  wit,  on,  &c.,  it  was  adjudged,  ordered 
and  decreed  in  a  certain  cause,  civil  and  maritime,  then  depending  in 
this  court  between  G.  0.,  A.  W.,  A.  R.  and  D.  C,  libellants,  and  E.  S, 
and  E.  W,,  surviving  executrives  of  D.  R.,  Esq.,  deceased,  respond- 
ents, that  tlie  certificates  in  tlie  libel  in  the  said  court  filed,  mentioned, 
should  be  transferred  and  delivered,  and  the  interest  moneys  paid  over 
by  the  said  respondents  to  the  said  libellants,  in  execution  of  the 
judgment  and  decree  of  the  Court  of  Appeals,  as  stated  in  the  pro- 
ceedings in  the  said  cause,  with  costs ;  provided  however,  that  the 
bond  of  indemnity  should  be  cancelled  or  delivered  to  the  said 
respondents  on  their  compliance  with  the  said  decree : 

"  Therefore,  you  are  hereby  commanded,  in  the  name  and  by  the 
authority  of  the  United  States,  that  you  forthwith  attach  and  arrest 
the  bodies  of  the  said  respondents,  E.  S.  and  E.  W.,  and  them  so 
attached  and  arrested,  to  keep  and  detain  under  safe  and  secure 
arrest  until  they  shall  in  all  things  comply  with  and  perform  the  final 
sentence  or  decree  pronounced  in  this  cause  on  the  said 

"  Given  under  my  hand  and  the  seal  of  the  District  Court,  at 
Philadelphia,  this  and  in  the  year  of  the  inde- 

pendence of  the  said  United  States. 

"R.  P." 
"  S.  D.  C,  Clerk  Dist.  Court." 

And  the  grand  inquest  aforesaid  do  further  present,  that  the  said 
judicial  writ  of  arrest  being  duly  awarded,  issued  and  delivered  as 
aforesaid,  afterwards,  to  wit,  on,  &.c.,  at,  &c.,  in  the  said  district,  the  said 
J.  S.  then  and  there  being  an  officer  of  the  said  United  States,  to  wit, 


(^g)  This  indictment,  wiiich  was  incident  to  a  serious  collision  between  flic  authorities  of 
the  United  States  and  of  the  State  of  Pennsylvania,  was  met  by  a  plea  which  will  be  exam- 
ined under  tiie  chapter  Pleas,  to  whicii  the  attention  of  the  reader  is  directed.  The  indict- 
ment was  sustained  by  the  court.     The  bill  bears  the  name  of  Mr.  A.  J.  Dallas. 


508  OFFENCES  AGAINST  SOCIETY. 

marshal  of  tlie  district  aforesaid,  attempted  to  serve  and  execute  the 
said  writ  of  arrest  in  manner  and  form  as  he  was  therein  commanded; 
tind  that  M.  B.,  late  of  the  said  district,  esquire,  J.  A.,  late  of  the  said 
district,  yeoman,  W.  C,  late  of  the  said  district,  yeoman,  C.  W.,  late 
of  the  said  district,  yeoman,  S.  W.,  late  of  the  said  district,  yeoman, 
A.  0.,  late  of  the  said  district,  yeoman,  D.  P.,  late  of  the  said  district, 
3'eoman,  C.  H.,  late  of  the  said  district,  yeoman,  and  J.  K.,  late  of  the 
said  district,  yeoman,  with  divers  other  persons  to  the  said  grand 
inquest  unknown,  being  then  and  there  well  and  truly  informed  of 
the  premises,  then  and  there  with  force  and  arms  did  knowingly, 
wilfully  and  unlawfully  obstruct,  resist  and  oppose  the  said  J.  S.,  then 
and  there  being  an  officer  of  the  said  United  States  as  aforesaid,  to 
wit,  marshal  of  the  said  district,  in  attempting  as  aforesaid  then  and 
there  to  serve  and  execute  the  said  judicial  writ  of  arrest  in  manner 
and  form  as  he  was  therein  commanded,  to  the  great  damage  of  the 
said  J.  S.,  to  the  great  hinderance  and  obstruction  of  justice,  to  the 
evil  example,  &c.,  against,  &c.,  and  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

{Jldd  second  count  for  assault  on  same). 

Refusal  to  aid  a  constable  in  the  service  of  a  capias  ad  respondendum 
issued  by  a  justice  of  the  peace,  {h) 

That  D.  P.,  then  and  there  being  one  of  the  justices  of  the  peace 
in  and  for  the  County  of  Bucks,  duly  commissioned,  qualified  and 
empowered  to  perform  the  duties  of  that  office,  and  being  so  commis- 
sioned, qualified  and  empowered,  did,  on,  &c,,  at,  &c.,  then  and  there 
jnake  his  certain  writ  in  writing  under  his  hand  and  seal,  directed  to 
the  constable  of  the  borough  of  Newhope,  or  to  the  next  constable  of 
the  said  county  most  convenient  to  the  defendant,  in  the  county  afore- 
said; by  which  said  writ  the  constable  aforesaid  was  commanded  to 
take  J.  H.,  of  Solesbury  township  in  the  said  county,  and  bring  him 
before  the  subscriber,  a  justice  of  the  peace  of  said  county,  forthwith 
on  the  service  thereof,  to  answer  L.  S.  in  a  plea  of  debt  not  exceeding 
otie  hundred  dollars,  and  that  should  be  his  warrant;  which  said  writ 
was  afterwards,  to  wit,  on,  &c.,  delivered  to  one  S.  H.  P.,  town  con- 
stable of  the  borough  of  Newhope  in  the  said  county,  duly  elected, 
appointed  and  qualified  to  perform  the  duties  of  that  office,  to  be  by 
him  executed  in  due  form  of  law,  and  that  the  said  S.  H.  P.  so  being 
town  constable  as  aforesaid,  afterwards,  to  wit,  on,  &,c.,  by  virtue  of 
the  said  writ,  did  then  and  there,  at  the  county  aforesaid  and  within 
the  jurisdiction  of  this  court,  take  and  arrest  the  said  J.  H.,  and  him 
the  said  J.  H.  the  said  S.  H.  P.  in  his  custody,  by  virtue  of  the  said 
writ  then  and  there  had,  and  that  the  said  J.  II.  did  then  and  there,  at 
the  county  aforesaid,  on  the  day  and  year  last  aforesaid,  with  force  and 
arms,  vif)lciitly,  forcibly  and  unlawfully  resist  and  obstruct  the  said 
S.  H.  P.  in  the  due  execution  of  his  said  oflice,  and  attempt  to  escape 


(A)  Comfort  v.  Com.,  5  Wh.  437.  There  was  a  refusal  to  arrest  judgment  on  tliis  in- 
dictment in  the  Quarter  Sessions  of  Backs  county,  and  an  affirmance  of  the  judfrnient  in 
the  Supreme  Court. 


RESISTAXCE  TO  OFFICERS  OF  JUSTICE,  &C.  509 

from  his  lawful  custody  and  go  at  large,  contrary  to  the  will  of  the 
said  S.  H.  P.,  and  that  he,  the  said  S.  H.  P.,  being  such  town  constable 
as  aforesaid,  thereupon  did  then  and  there,  on  the  day  and  year  last 
aforesaid,  at  the  county  aforesaid,  and  within  the  jurisdiction  of  this 
court,  in  his  proper  person  apply  to  J.  C,  E.  C,  J.  K.,  T.  K.  and  W. 
K.  Jr.,  all  late  of  the  township  of  Solesbury,  in  the  said  county,  yeo- 
men, and  they  the  said  J.  0.,  E.  C,  J.  K.,  T.  K.  and  W.  K.  Jr.,  all 
being  then  and  there  present,  and  in  the  name  of  the  Coainion  wealth 
of  Pennsylvania  did  then  and  there,  on  the  day  and  year  last  afore- 
said, at  the  county  aforesaid,  charge  and  require  them,  the  said  J.  C, 
E.  C,  J.  K.,  T.  K.  and  W.  K.  Jr.,  to  aid  and  assist  him  in  the  preser- 
vation of  the  peace  of  the  said  commonwealth^'and  for  the  securing 
Ihe  said  J.  H.,  and  for  preventing  the  said  J.  H,  from  effecting  his 
escape  from  and  out  of  the  lawful  custody  of  him  the  said  S,  II.  P. ; 
he  the  said  S.  H.  P.  being  then  and  there  such  town  constable  as 
aforesaid,  in  the  due  execution  of  his  said  office,  in  conveying  the 
said  J.  H.  before  the  said  justice  of  the  peace,  to  be  dealt  with  accord- 
ing to  law.  Yet  the  said  J.  C,  E.  C,  J.  K.,  T.  K.  and  W.  K.  Jr.,  all 
beitig  then  and  there  duly  informed  that  the  said  S..  H.  P.  was  such 
town  constable  as  aforesaid,  and  well  knowing  the  same,  and  that  he 
the  said  S.  H.  P.  was  in  the  due  execution  of  his  said  office,  and  not 
regarding  their  duty  in  that  respect,  to  wit,  on  the  day  and  year  last 
aforesaid,  to  wit,  at  the  county  aforesaid,  and  within  the  jurisdiction 
of  the  court,  with  force  and  arms,  unlawfully,  obstinately  and  con- 
temptuously did  neglect  and  refuse  to  aid  and  assist  him,  the  said  S. 
H.  P.,  for  the  purpose  and  on  the  occasion  aforesaid,  in  the  manner 
they,  the  said  J.  C,  E.  C,  J.  K.,  T.  K.  and  W:  K.  Jr.,  were  charged 
and  required  to  do  as  aforesaid,  or  in  any  other  manner  whatever, 
contrary  to  their  duty  in  that  belialf ;  whereby  the  said  J.  H.  did  then 
and  there,  to  wit,  on  the  day  and  year  last  aforesaid,  at  the  county 
aforesaid,  and  within  the  jurisdiction  of  this  court,  eff*ect  his  escape 
from  and  out  of  the  lawful  custody  of  him  the  said  S.  H.  P.,  and 
against  the  will  of  the  said  S.  H.  P.,  he  the  said  S.  H.  P.  being  then 
and  there  such  town  constable  as  aforesaid,  and  in  the  due  execution 
of  his  said  office,  and  did  go  at  large  in  manifest  contempt  of  our  said 
commonwealth  and  her  laws;  to  the  great  hinderance  of  justice,  to  the 
evil  example,  &c.,  contrary,  &c.,  and  against,  &c.  [Qoiidude  as  in 
book  1,  chap.  3). 

Assault  with  intention  to  obstruct  the  afprehension  of  a  party  charged 
with  an  oJfence.{i) 

That  A.  B.,  late  of,  &c.,  on,  &c.,  with  force  and  arms  at,  &c.,  in  and 
upon  one  C.  D,,  a  subject  of  our  said  lady  the  queen  then  and  there 
being,  wilfully  and  unlawfully  did  make  an  assault,  and  him  the  said 


(i)  Dickinson's  Q.  S.  Gth  ed.  323.  The  following  count,  which  formed  the  fourth  in 
R.  «.  Fraser,  1  Mood.  C.  C.  411),  will  (thoug-h  for  cutting  and  wounding),  be  useful  for 
framing'  indictments  for  common  assaults,  with  intent  to  obstruct  arrest: 

"  In  and  upon  said  J.  C,  in  tiie  peace  of  God  and  our  said  lady  the  queen  then  and  there 
being,  unlawfully,  ic,  did  make  an  ass.-iull,  and  then  and  there  unlawfully,  &.C.,  did  cut 
and  wound  said  J.  C  in  dnd  upon  llic  iiead  and  face  of  said  J.  C,  with  intent  to  resist  and 

43* 


510  OFFENCES    AGAIXST  SOCIETY. 

C.  D.  did  then  and  there  beat,  wound  and  ill-treaty  with  intent  in  so 
doing  wiUully  and  unlawfully  to  obstruct,  resist  and  prevent  the  law- 
ful apprehension  and  detention  of  him  the  said  A.  B.  for  a  certain 
offence,  to  wit,  lor,  &c.,  (fiere  state  the  offence  with  which  the  defend- 
ant luas  charged),  for  which  said  offence  he  the  said  A.  B.  was  then 
and  there  liable  by  law  to  be  apprehended,  imprisoned  and  detained, 
against,  &c,,  and  against,  &c.     \Concliide  as  in  book  1,  chap.  3). 

And  the  jurors,  &c.,  that  the  said  A.  B.  heretofore,  to  wit,  on,  &c., 
aforesaid,  with  force  and  arms  at,  &c.,  aforesaid,  in  and  upon  the 
said  C.  D.  wilfully  and  unlawfully  did  make  an  assault,  and  him  the 
said  C.  D.  did  then  and  there  beat,  wound  and  ill-treat,  with  intent  in 
so  doing  wilfully  and  unlawfully  to  obstruct,  resist  and  prevent  the 
lawful  apprehension  and  detention  of  him  the  said  A.  B.  for  a  certain 
offence,  before  then  committed,  to  wit,  at,  &lc.,  aforesaid,  for  the  com- 
mitting of  which  said  last  mentioned  offence  he  the  said  A.  B.  was 
then  and  there  liable  by  law  to  be  apprehended,  imprisoned  and  de- 
tained, against,  &c.,  and  against,  &c.     [Conclude  as  in  book  1,  chajj. 

3)- 

{Add  a  count  for  a  common  assault). 

Assault  on  a  deputy-gaoler  in  the  execution  of  his  office.{j) 

That  A.  B.,  late  of  the  castle  of  Lancaster,  in  the  County  of  Lan- 
caster, labourer,  on  with  force  and  arms,  at  the  castle  of  Lan- 
caster, at  Lancaster  aforesaid  in  the  said  county,  in  and  upon  one  J. 
C,  then  and  there  being  deputy-keeper  of  his  majesty's  gaol  of  the 
castle  of  Lancaster,  and  having  the  custody  of  divers  persons  confined 
in  the  said  gaol,  and  then  and  there  being  in  the  due  execution  of  his 
said  duty  and  office  of  deputy-keeper  as  aforesaid,  did  make.an  as- 
sault, and  him  the  said  J.  C.  did  beat,  bruise,  wound  and  ill-treat,  so 
that  his  life  then  and  there  was  greatly  despaired  of,  and  otlier  wrongs 
to  the  said  J.  C.  then  and  there  did,  to  the  great  damage  of  the  said 
J.  C,  and  against,  &c,     [Conclude  as  in  book  1,  chap.  3). 

[Add  a  count  for  a  common  assault). 

Resisting  a  sheriff  in  execution  of  his  ojjice.      First  count,  assault  on 
sheriff'  at  common  law.{k) 

That  W.  P.  H.,on,&c.,  at,  &c.,  with  force  and  arms,  in  and  upon  one 
A.  S.,  in  the  peace  of  (iod  and  of  this  slate  then  and  there  being,  and 
then  being  sheriff' of  said  County  of  Addison  and  in  the  due  execution 
of  his  said  office,  then  and  there  did  make  an  assault,  and  him  the 
said  A.  S.,  so  being  in  the  due  execution  of  his  said  office  aforesaid, 

prevent  the  I;iwfii!  a[)prchcnsion  and  (1(  taiiirr  oi"  liim  the  said  M.  F.,  for  a  certain  offence 
by  iiim  coinrriitted,  for  which  fie  tiic  said  M.  F.  was  tiien  and  tlicro  liable  by  law  to  be  ap- 
[ircheridcd  and  detained,  that  is  to  say,  for  then  and  there  wilfully  and  rnuliciously  conn- 
iniltintr  dainajres  and  injury  u[)on  ccilain  phiiits  and  roots  then  and  there  growing;  in  a 
c'ltiiin  triirdcn  of  and  belon<jing  toll.  I.,  there  situate,  against  the  statute,  &,c.,  and  against 
tlie  ()eacc,  &,c." 

0)  Stark.  (;.  P.  430. 

(k)  Stale  V.  Hoolur,  17  Vrrni.  231.  'J'liis,  willi  a  count  for  a  coniinon  assault  and  bat- 
tery, was  eonsidtrcd  by  the  Supreme  Court  as  well  pleaded. 


ASSAULT  0.\   SHERIFF,  &C.  511 

then  and  there  did  hinder  and  impede,  and  then  and  there  did  beat, 
wound  and  ill-treat,  and  other  wrongs  to  the  said  A.  S.  then  and  there 
did,  to  the  great  damage  of  the  said  A.  S.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

Second  count.  The  same  under  statute,  specially  setting  out  the  exe- 
cution ivhich  the  sheriff  was  serving,  ^'C. 

That  the  said  W.'  P.  H.,  at,  &c.,  aforesaid,  on,  &:c,,  with  force  and 
arms,  wilfully  and  knowingly  did  impede  and  hinder  a  civil  olficer, 
under  the  authority  of  this  stiite  in  the  execution  of  his  office,  to  wit, 
A.  S.,  sheriff' of  the  County  of  Addison  aforesaid,  in  the  peace  of  God 
and  this  state  then  and  there  being,  in  then  and  there  serving  and  at- 
tempting to  serve  and  execute  a  legal  writ  of  execution,  to  wit,  a 
pluries  writ  of  execution,  regularly  issued  on  a  judgment  rendered 
by  the  Honourable  County  Court  in  and  for  said  County  of  Addison, 
at  a  term  of  said  court  begun  and  holdeu  at  JNIiddlebury,  in  and  for 
said  County  of  Addison,  on,  &-c..,  said  execution  dated,  &c.,  and 
signed  by  S.  S.,  clerk  of  said  court,  and  directed  to  any  sheriff  or  con- 
stable in  the  state,  and  made  returnable  in  sixty  days  from  the  date 
thereof,  whereby,  after  reciting  that  H.  G.  of  said  Middlebury,  by  the 
consideration  of  the  County  Court  begun  and  holden  at  Middlebury, 
iu  and  for  said  County  of  Addison,  on,  &c.,  recovered  judgment 
against  the  said  W.  P,  H.  and  one  C.  H.  in  an  action  of  trespass  (the 
cause  of  which  action  it  was  adjudged  by  said  court  arose  from  the 
wilful  and  malicious  act  of  the  defendants),  in  the  sum  of  three  hun- 
dred and  forty-one  dollars  and  fifty-six  cents  damages,  and  for  the 
sum  of  thirty-two  dollars  and  seventy  cents  costs  of  suit,  whereof 
execution  remains  to  be  done  for  the  sum  of  tliree  hundred  and  seven 
dollars  and  seventy  cents,  said  officer  as  often  before  conmianded,  is 
therefore  by  virtue  of  said  writ  of  execution,  by  the  authority  of  the 
State  of  Vermont,  commanded  to  cause  to  be  levied  of  the  goods, 
chattels  or  estate  of  the  said  W.  P.  H.  and  C.  H.,  said  sum  of  three 
hundred  and  seven  dollars  and  seventy  cents,  with  twenty-five  cents 
more  for  said  writ  of  execution  and  fifty  cents  for  two  others,  and  for 
want  of  the  goods  and  chattels  of  said  W,  P.  and  C,  shown  or  to  be 
found  by  said  officer  witliin  his  precinct,  commanding  him  to  take 
the  bodies  of  said  W.  P.  H.  and  C.  H.,  and  them  commit  to  the 
keeper  of  the  common  gaol  of  Middlebury,  in  said  county,  within  said 
{)rison,  which  said  writ  of  execution  so  duly  issued  as  atbresaid,  in 
lull  life,  and  in  no  way  satisfied,  paid  or  discharged,  was  on,  &.C., 
delivered  to  said  A.  S.,  sheriff  as  aforesaid,  to  serve  and  return,  and 
afterwards,  to,  wit,  on,  &c.,  at  Middlebury  aforesaid,  the' said  A.  S., 
then  being  sheriff  as  aforesaid,  for  want  of  the  goods,  chattels  or  lands 
of  the  said  W.  P.  and  C,  shown  him  or  to  be  found  within  his  pre- 
cinct whereon  to  levy  said  writ  of  execution,  attempted  to  serve  and 
execute  said  writ  of  execution  as  he  was  therein  commanded,  by 
arresting  the  body  of  said  W.  P.  H.;  and  the  said  W.  P.  H.  then 
and  there  unlawfully  and  wickedly  intending  to  impede  and  hin- 
der the  said  A.  S.  in  the  execution  of  his  said  office,  and  well 
knowing  that  said  A.  S.  was  sheriff  of^  the  County  of  Addison  as 
aforesaid,  and  that  said  A.  S.  then  and  there  liad  said  writ  of  execu- 
tion so  duly  issued  and  in  full  force  as  aforesaid  to  serve  and  execiKe,, 


512  OFFENCRS  AGAINST  SOCIETV. 

aijJ  was  then  and  there  attempting  to  serve  and  execute  said  writ  of 
execution,  did  with  force  and  arms  then  and  there  impede  and  hinder 
the  said  A.  S.,  sheriff  as  aforesaid,  in  attempting  to  serve  and  execute 
said  writ  of  execution,  in  the  execution  of  his  said  office,  by  beating 
and  bruising  the  said  A.  S.  with  a  large  and  heavy  bludgeon  on  his 
head,  shoulders  and  arms,  to  the  great  damage  of  the  said  A.  S.,  to 
the  great  hinderance'and  obstruction  of  justice,  and  contrary,  &c.,  and 
against,  &c.    {Conclude  as  m  book  1,  chap.  3). 

Assault  on  police  officer  of  the  City  of  Boston,{l) 

That,  &c.,  on,  &c.,  at,  &.c.,  with  force  and  arms,  in  and  upon  one 
G.  L.  an  assault  did  make,  said  L.  then  and  there  being  a  police 
officer  of  the  City  of  Boston,  and  then  and  there  being  in  the  lawful 
discharge  of  his  duty  as  such  police  officer,  and  him  then  and  there 
did  beat,  wound,  bruise  and  evil  treat,  and  did  then  and  there  ob- 
struct, hinder  and  oppose  said  G.  L.  in  discharge  of  his  duty  as  said 
police  officer,  and  which  he  the  said  G.  L.  was  then  and  there  at- 
tempting lawfully  to  perform,  against,  &c.  {Conclude  as  in  book 
I,  chap.  3). 

Assaulting  a  person  specialhj  deputized  by  a  justice  of  the  peace  to  serve 
a  ivarrant.{in) 

That  S.  F.,  of  in  the  county  of  yeoman,  on,  &c.,  with 

force  and  arms  at,  &c,,  in  and  upon  the  body  of  one  P.  W.  did  make 
an  assault,  he  the  said  P.  W.  being  then  and  there  duly  and  lawfully 
appointed  to  serve  and  execute  a  certain  warrant,  legally  issued 
against  the  said  S.  F.,  and  the  said  P.  W.  being  then  and  there  in  the 
due  and  lawful  execution  of  the  said  warrant,  and  that  he  the  said  S. 
F.,  him  the  said  P.  W.  did  then  and  there  beat,  abuse  and  ill-treat ; 
and  in  the  due  and  lawful  exercise  of  his  said  office,  did  then  and 
there  unlawfully  and  knowingly  obstruct,  hinder  and  oppose,  and 
other  wrongs  tlien  and  there  did  and  committed;  to  tlie  great 
damage  of  the  said  P.  W.,  and  against,  &.C.  {Conclude  as  in  book  1, 
chap.  3). 


'  (Z)  Com.  13.  Hasf^ng^s,  9  Mete.  259. 

(•/n)  In  this  form  lliere  is  no  averment  that  tlie  prosecutor  was  an  officer,  and  in  tlic  case 
for  which  it  was  drawn,  tlie  fact  was  that  lie  was  not.  It  appeared  that  lie  was  specially 
di'|)utized  hy  a  justice  to  arrest  the  defendant  for  breach  of  the  peace.  There  was  nothing' 
introduced  in  the  evidence  to  show  that  the  deputation  was  made  through  necessity, 
or  that  no  resrularly  constituted  officer  was  at  the  time  accessible;  and  the  court  held  that 
under  audi  circumstances  there  bcintj  no  valid  appointment,  the  warrant  was  no  protection 
to  the  prosecutor.  Whether  or  not  such  deputation  would  have  been  {rood  if  it  had  ap- 
peared that  there  was  no  officer  at  hand  to  have  served  the  warrant,  was  doubled  ;  Com.  v. 
Foster,  I  Mass.  4Bt).  Wherever  flic  |)ros(!eutor  is  a  resjular  constable,  it  is  bcllcr  speciiiUy 
to  aver  the  fact;  though  if  the  official  aggravation  be  badly  |)leadcd,  the  whole  of  it  may 
be  rejected  as  surplusage,  and  a  verdict  sustained  on  the  mere  assault.  A  sheriff's  de[)uty, 
however,  will  be  protected  in  the  execution  of  his  office,  whether  he  be  formally  ajipointed 
by  writing  or  not ;  Com.  v.  Field,  13  Mass.  321. 


RESISTANCE' TO  OFFICERS  OF  JUSTICE — MASQUERADE,  &C.  513 

Assaulting  peace  oi'  revenue  officers  in  the  execution  of  their  duties. (ii) 

That  A.  B.,  &c.,  on,  &c.,  at,  &c.,  in  and  upon  one  J.  N.,  then  and 
there  being  a  peace  officer,  to  wit,  a  constable,  {any  peace  officer  or 
revenue  officer,  or  any  person  acting  in  aid  of  such  officer),  and 
then  and  there  being  in  the  dne  execniion  of  his  duty  as  such  consta- 
ble, did  make  an  assault,  and  him  the  said  J.  N.  so  being  in  the  exe- 
cution of  his  duty  as  aforesaid,  then  and  there  did  beat,  wound  and 
ill-treat,  and  other  wrongs  to  the  said  J.  N.  then  and  there  did;  to 
the  great  damage  of  the  said  J.  N.,  against,  &:c.,  and  against,  &,c. 
{Conclude  us  in  book  1,  chap.  3). 

{Add  a  count  for  a  common  assault). 

Resisting  an  officer' of  the  customs  in  the  discharge  of  his  duty.{o) 

That  S.  L.,  &c.,  on,  &c.,  at,  &c.,  did  forcibly  resist,  prevent  and  im- 
pede a  certain  J.  J.  R.  in  the  execution  of  his  duty  as  an  officer  of  the 
customs  for  the  district  aforesaid ;  he  the  said  J.  J.  R.  being  then  and 
there  an  inspector  of  said  district,  and  as  such  duly  appointed  and 
authorized  to  seize  all  goods,  wares  and  merchandise  imported  into 
said  district  contrary  to  law.  And  the  said  J.  J.  R.  being  then  and 
there  in  the  peace  of  the  United  States,  and  having  then  and  there  in 
the  due  execution  of  his  office  as  aforesaid  the  charge  and  possession 
of  certain  goods,  wares  and  merchandise  on  board  of  a  certain  vessel, 
to  wit,  the  brig  Star,  as  having  been  imported  into  the  United  States 
and  into  the  district  aforesaid  contrary  to  law  ;  he  the  said  S.  L.  did 
then  and  there  forcibly  take  and  carry  away  from  said  vessel  and 
from  the  possession  and  custody  of  the  said  J.  J.  R.,  the  said  goods, 
wares  and  merchandise,  contrary,  &c.,  and  against,  &c.  [Conclude 
as  in  book  1,  chap.  3). 

That  the  said  S.  L.,  afterwards,  to  wit,  on,  &c.,  did  forcibly  resist, 
prevent  and  impede  a  certain  J.  J.  R.,  an  officer  of  the  customs  for 
the  District  of  Philadelphia,  in  the  United  States  of  America,  he  the 
said  J.  J.  R,  being  then  and  there  an  inspector  of  said  district,  and  as 
such  duly  appointed  and  authorized  to  take  charge  and  possession  of 
all  goods,  wares  and  merchandise  imported  into  said  district,  in  the 
execution  of  his  duty  as  an  inspector  as  aforesaid,  contrary  &.C.,  and 
against,  &c.     {Conclude  as  iti  book  1,  chap.  3). 

Masquerade  under  the  Pennsylvania  act  of  February  18,  1805.(p) 

That  A.  B.,  &c.,  "  late  of  the  said  on  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and  at  the 

aforesaid,  and  within  the  jurisdiction  of  this  court,  did  set  on 


(n)  Archbold's  C.  P.  5th  Am.  ed.  545. 

This  is  under  the  English  statute,  which  nffixes  a  specific  penalty  on  "any  assault  upon 
any  revenue  or  peace  officer  in  the  due  execution  of  his  duty,  or  upon  any  person  acting 
in  aid  of  such  officer." 

(o)  Under  this  indictment  the  defendant  was  convicted  in  Philadclpliia,  in  1842. 

(/»)  This  is  the  form  prescribed  by  the  act  making  the  offijnce,  aud  as  the  words  are  im- 
pel alive,  any  variance  will  be  fatal. 


514  OFFENCES  AGAINST  SOCIETY. 

foot,  promote  and  encourage  a  masquerade  within  the  afore- 

said, to  the  common  nuisance  of  all  good  citizens  of  this  common- 
wealth," contrary,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 


CHAPTER  V. 


COMPOUNDING  FELONY. 

At  common  law  for  compounding  a  felony. {a) 

That  one  A.  B.,  late  of,  &c.,  on,  &c.,  with  force  and  arms  at,  &c., 
one  silver  spoon  of  the  value  of  five  shillings  of  the  goods  and  chat- 
tels of  one  C.  D.  then  and  there  being  found,  feloniously  did  steal, 
take  and  carry  away,  against,  &c.    {Conclude  as  in  book  1,  chap.  3). 

And  that  the  said  C.  D.,  late  of,  &c,,  well  knowing  the  premises, 
but  unlawfully  and  unjustly  contriving  and  intending  to  prevent  the 
due  course  of  law  in  this  behalf,  and  to  procure  the  said  A.  B.  to 
escape  with  inipunity,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  unlawfully 
and  unjustly,  and  for  the  sake  of  wicked  lucre,  did  compound  the  said 
felony  with  the  said  A.  B.,  and  did  then  and  there  exact,  receive  and 
have  of  the  said  A.  B.,  five  pounds  in  moneys  numbered  for  and  as  a 
reward  for  compounding  for  the  said  felony,  and  for  desisting  from 
all  prosecution  of  the  said  A.  B.  for  the  felony  aforesaid,  and  that  the 
said  C.  D.  on,  &c.,  at,  &c.,  did  thereupon  desist,  and  from  that  time 
hitherto,  hath  desisted  from  all  prosecution  of  the  said  A.  B.  for  the 

(a)  Dickinson's  Q.  S.  6tli  ed.  346. 

(Offence  at  cominun  law).  The  agrceinjr  to  receive  money  in  consideration  of  com- 
poundiiijr  a  clmifre  of  felony  is  a  hifrli  misdemeanor,  suhjcctinu;'  tlie  parly  who  commits  it 
to  imprisonment  and  fine;  1  Hale  540,  Gli);  2  tlaie  400.  Formerly  it  was  tiiougiit  to  con- 
Ktitute  the  offender  an  accessory  to  the  original  crime;  but  this  construction  has  not  pre- 
vailed in  modern  times  ;  4  Hhi.  ("om.  I'M.  The  otieiicc  is  consummated  by  a  person  receiv- 
ing- a  note  from  a  parly  charged  with  larceny  as  a  consideration  for  not  prosecuting  the 
suit;  Com.  v.  Pease,  16  Mass.  IJI.  It  is  also  a  misdemeanor  to  receive  money  for  com- 
poundinir  a  prosecution  for  misdemeanor,  or  a  criminal  information,  without  leave  of  the 
coart  in  which  the  proceeding  is  de[)ending;  Collins  v.  Blantern,  2  VVils.  341,  349;  Edge- 
comb  15.  Ross,  5  East  21)8,  302  ;  but  that  permission  is  soinetiines  granted  in  eases  of  per- 
sonal injury  ;  see  remarks  of  Gibson  C.  ,1.,  in  IJrittain  v.  Doylestown  Hank,  5  VV.  &  S.  99. 
The  com[)oiinding  |)cnal  actions  without  leave  of  the  court,  was  made  punishal)le  by  the 
statute  Irt  Eliz.  c.  .'),  ss.  3  ;^nd  4,  see  II.  v.  Stone,  4  C.  it  P.  379;  R.  v.  Crisp,  1  B.  &  Al. 
'2f2;  R.  V.  Gotley,  R.  &,  R:  84;  Reg.  v.  Rest,  9  C.  &.  P.  308,  with  the  forfeiture  of  £  10, 
Jialf  to  the  party  grieved  and  halt'  to  the  crown,  with  exposure  in  the  pillory  (now 
iibolished).  But  18  Eliz.  c.  5,  does  not  a|)ply  to  informations  for  offences  cognizable  only 
before  magistrates  ;  and,  therefore,  an  indictment  for  compounding  such  an  offence  was 
lioldcn  bad  in  arrest  of  judgment;  R.  v.  Crisp,  I  B.  &-  Al.  282.  Sec  generally  as  to  com- 
promise of  misdemeanors,  6  Pa.  L.  J.  359. 


COMPOUNDING  FELONY.  515 

felony  aforesaid,  to  the  great  hinderance  of  public  justice,  and  against, 
(fcc.(i)     [Conclude  as  in  book  1,  chap.  3). 

Compounding  misdemeanor.     [Slat.  18  EUz.)     First  count.[c) 

That  the  defendant  disregarding  the  statute  (18  Eliz.  c.  5,  s.  4), 
upon  colour  and  pretence  that  one  W,  P.  had  committed  a  certain 
offence  against  a  certain  penal  law,  in  this,  that  the  said  VV.  P.  had, 
before  that  time,  sold  by  retail  and  delivered  a  quantity,  less  than  two 
gallons,  of  certain  spirits  and  distilled  spirituous  liquors,  to  wit,  one 
quartern  of  gin  to  one  E.  H.,  without  being  duly  licensed,  against  the 
form  of  the  statute,  &c.,  unlawfully  and  lor  wicked  gain's  sake,  and 
\yithout  the  order  and  consent  of  the  queen's  courts  at  Westminster, 
did  make  composition  with  the  said  W.  P.,  and  take  from  him  three 
sovereigns,  three  half-sovereigns,  and  ten  shillings,  twelve  pennies, 
and  twenty-four  half-pennies,  as  a  reward  for  forbearing  to  prosecute 
for  the  said  supposed  offence  agaitist  the  statute,  and  against,  &c. 
[Conclude  as  in  book  1,  chap.  3). 

(6)  See  4  Went.  327. 

(c)  R.v.  Best,  9  C.  &  P.  363. 

The  second  count  was  like  the  first,  except  that  it  stated  the  selling  of  the  spirits  to  be 
in  a  certain  house  in  the  occupation  of  VVilli.im  Peverill,  he  not  having  a  retailing  license. 

In  this  case  A.  threatened  B.  that  he  would  inform  against  liini  for  selling  spirits  with- 
out  a  license,  unless  B.  would  give  him  a  sum  of  money.  B.  had  not  in  fact  sold  any 
spirits,  but  he  gave  A.  the  money  to  prevent  an  inforn)ation ;  and  it  was  held  that  A.  waa 
indictable  under  the  stat.  18  Eliz.  c.  5,  s.  4, , although  B.  had  not  committed  any  offence, 
and  although  no  information  was  ever  preferred  noy  any  process  sued  out. 

By  stat.  18  Eliz.  c.  5,  s.  4,  it  is  enacted  "that  if  any  person  or  persons  (except  the  clerks 
of  the  court  only  for  making  out  jirocess  otherwise  than  is  above  appointed),  shall  offend 
in  suing  out  of  process,  making  of  composition,  or  other  misdemeanor  contrary  to  the  true 
intent  and  meaning  of  this  statute,  or  shall  by  colour  or  pretence  of  process,  or  without 
process  upon  colour  or  pretence  of  any  matter  of  otfence  against  any  penal  law,  make  anv 
composition,,  or  take  any  money,  reward  or  promise  of  reward,  for  himself,  or  to  the  use  of 
any  other,  without  order  or  consent  of  some  of  her  majesty's  courts  at  Westminster,  that 
then  he  or  they  so  offending  being  tliereof  lawfully  convicted,  shall  stand  on  the  pillory, 
be  disabled  to  sue  in  any  action  popular  or  penal,  and  forfeit  £  10;  and  justices  of  oyer 
and  terminer,  justices  of  assize  on  their  circuits  and  the  quarter  sessions,  are  empowered 
to  hear  and  determine  offences  against  this  act." 

By  the  stat.  56  Geo.  Ill,  c.  138,  the  punishment  of  the  pillory  was  abolished  as  to  this 
offence,  and  fine  and  imprisonment  substituted  for  it.  ' 

Two  other  cases  appear  under  this  statute  in  the  English  books.  In  one,  R.  ».  Souther- 
ton,  6  East  126,  it  was  held  that  a  threatening  to  put  in  motion  a  prosecution  for  penalties 
for  the  purpose  of  obtaining  money  to  stay  the  prosecution,  is  not  an  indictaijle  offence  at 
common  law,  although  it  be  alleged  that  the  money  was  obtained ;  but  Ld.  Ellenborough 
intimates  an  opinion  that  the  charge  might  have  been  supported  if  the  indictment  had 
been  framed  on  the  stat.  Eliz.  c.  .5. 

In  the  other,  R.  v.  Gotlcy,  R.  &  R.  C.  C.  84,  the  prisoner  was  convicted  of  having  com- 
pounded an  offence  aginst  the  highway  act.  Some  of  the  counts  stated,  that  the  party 
from  whom  the  money  was  taken,  had  committed  the  offence;  and  the  others  stated,  that 
the  prisoner  compounded,  and  took  money  by  and  upon  colour  and  [)rctencc  of  a  certain 
matter  of  offence  pretended  to  have  been  committed.  It  was  provod,  that  the  person  from 
whom  the  prisoner  took  the  money,  had  incurred  a  penalty  of  five  pounds  under  the  high- 
way act,  and  that  the  prisoner  had  received  money  from  him  to  compound  it,  but  that  no 
process  had  been  sued  out,  and  no  information  laid  before  any  magistrate.  Le  Blanc  J. 
resj)ited  the  judgment,  upon  a  doubt  whether  the  offence  was  within  the  stat,  Eliz.  c.  5, 
inasmuch  as  no  action  or  proceeding  was  depending,  in  which  the  order  or  consent  of  any 
court  in  Westminster  Hall  for  a  com[)osition  could  be  obtained;  but  tiie  judges  held  the 
conviction  right;  and  that  the  statute  18  Eliz.  c.  .'5,  applies  to  all  cases  of  taking  a  penally 
incurred  or  pretended  to  be  incuried,  v.ithout  leave  of  a  couU  at  Westtflinstcr,  or  judgment 
or  conviction. 


516  OFFENCES  AGAINST  SOCIETY. 


CHAPTER  VI. 

MISCONDUCT  IN    OFFICE;    INCLUDING    EXTORTION,   NEGLECT    OP    DUTY, 
ESCAPE,  AND  CRUELTY   TO  SEAMEN,  CHILDREN.  AND  PAUPERS. 

Against  a  magistrate,  for  committing  in  a  case  ichere  he  had  no  juris- 
diction.{a) 

That  on,  &.C.,  at,  &c.,  one  T.  C,  then  being  one  of  the  constables 
of  the  said  parish,  brought  one  J.  N.  before  J.  S.,  Esq.,  then  and  yet 
being  one  of  the  justices  of  our  said  lady  the  queen,  assigned  to  keep 
the  peace  of  our  said  lady  the  queen  in  and  for  the  county  aforesaid, 
and  also  to  hear  and  determine  divers  felonies,  trespasses  and  other 
misdeeds  committed  in  the  said  county;  and  the  said  J.  N.  then  and 
there  was  charged  before  the  said  J.  S.  with  having  committed  a  cer- 
tain supposed  misdemeanor,  in  having  vilified  the  character  and  hurt 
the  trade  of  one  A.  C.  of  the  parish  aforesaid,  miller;  and  the  said  J. 
N.  was  then  and  there  examined  beibre  the  said  J.  S.  as  such  justice 
as  aforesaid,  touching  the  said  supposed  offence  so  to  him  charged  as 
aforesaid.  And  the  jurors  aforesaid  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  J.  S.,  late  of  the  parish  aforesaid  in  the 
county  aforesaid,  esquire,  being  such  justice  as  aforesaid,  wickedly 
and  maliciously  contriving  and  intending  to  oppress,  injure  and  ag- 
grieve the  said  J.  N.  in  this  behalf  and  to  put  him  to  great  charge  and 
expense,  and  to  cause  him  to  undergo  and  suffer  great  pain,  torture 
and  anguish  of  body  and  mind,  afterwards,  to  wit,  on  the  day 
and  year  aforesaid,  at,  &c.,  did  order  and  direct  that  the  said  J.  N. 
should  find  sureties  for  his  personal  appearance  at  the  next  general 
quarter  sessions  of  the  peace  of  our  said  lady  the  queen,  to  be  holdeu 
in  and  for  the  said  County  of  M.,  to  answer  the  said  charge;  and, 
because  the  said  J.  N.  did  not  and  could  not  conveniently  find  such 
sureties  as  aforesaid,  he  the  said  J.  S.,  being  such  justice  as  aforesaid, 
wickedly  and  maliciously  contriving  and  intending  as  aforesaid, 
wrongfully,  unjustly  and  maliciously,  and  contrary  to  the  laVs  of  this 
realm,  then  and  there  (by  virtue  and  colour  of  a  certain  warrant  un- 
der his  hand  and  seal  as  such  justice  as  aforesaid),  did  commit  the 
said  J.  N.  a  prisoner  to  a  certain  prison  called  the  house  of  correction, 
situate  at  the  parish  aforesaid  in  the  county  aforesaid,  to  be  there 
safely  kept  until  he  the  said  J.  N.  should  find  such  sureties  as  afore- 
said, and  until  lie  should  be  I'ully  examined  according  to  the  premises; 
and  then  and  there  ordered,  directed  and  commanded  the  then  keeper 
of  the  said  prison  to  keep  the  said  J.  N.  under  close  confinement  in 
the  said  prison,  and  to  deny  him  the  use  of  pen,  ink  a.)d  paper,  and 
to  allow  no  letter  to  be  delivered  to  or  from  the  said  J.  N.,  and  also 
to  allow  no  person  to  see  or  speak  to  him  the  said  J.  N.    And  the 

(o)  Arch.  C.  P.  5tli  Am.  cd.  G89. 


MISCONDUCT  BY  JUSTICES.  517 

jurors  aforesaid  upon  their  oath  aforesaid,  do  further  present,  that  the 
said  J.  S.  by  virtue  and  under  colour  of  the  warrant  aforesaid,  after- 
wards, to  wit,  on  the  day  and  year  aforesaid,  and  from  thence  for  a 
long  space  of  Liiue,  to  wit,  for  the  space  often  days  then  next  follow- 
ing, at  the  parish  aforesaid  in  tlie  county  aforesaid,  wrongfully,  un- 
justly and  maliciously,  and  contrary  to  the  laws  of  this  realm,  did  cause 
and  procure  the  said  J.  N.  to  be  closely  confined  and  imprisoned  in 
tlie  said  prison,  and  to  be  denied  the  use  of  pen,  ink  and  paper,  and 
to  be  restrained  from  all  communication  with  his  relations  and  friends, 
to  wit,  at  the  parisli  aforesaid  in  the  county  aforesaid;  whereby  the 
said  J.  N.  during  all  that  time  underwent  and  suffered  great  pain, 
torture  and  anguish  of  body  and  mind,  and  was  deprived  of  his  liberty 
and  prevented  from  finding  such  sureties  as  aforesaid,  and  was  put 
to  great  charge  and  expense  in  and  about  obtaining  his  discharge 
and  release  from  the  said  conmiitraent  and  imprisonment ;  to  the  great 
scandal  of  tlie  administration  of  justice  in  this  kingdom,  in  contempt 
of  our  lady  the  queen  and-  her  laws,  to  the  evil  example,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Against  a  magistrate  for  neglect  of  duty  at  a  riot.     First  count,  for 
neglecting  to  read  the  riot  act.{b) 

That  on,  &c.,  at.  Sec,  divers  wicked,  seditious  and  evil  disposed 
persons  to  the  number  of  fifty  and  more,  whose  names  are  at  present 

(h)  R.  V.  Kennctt,  Esq.,  5  C.  &  P.  282.  This  information  was  filed  in  the  20  Geo.  III.  by 
Mr.  Wallace,  then  attorney-general.  There  was  a  verdict  of  g'uilty  before  Lord  Mansfield, 
but  no  sentence  was  passed,  the  defendant  dying'  shortly  after  trial. 

The  second  and  third  counts  were  nearly  similar,  except  that  they  omitted  such  part  of 
the  charges  in  the  first  count  as  related  to  demolishing  houses  afid  furniture. 

The  fourth  count  stated  a  riot  to  have  occurred  in  the  defendant's  presence,  and  that  he 
disregarding  his  duty,  did  not  make  the  proclamation,  but  refused  and  neglected  and  omit- 
ted so  to  do. 

The  fifth  count  stated  the  riot,  and  that  the  defendant  was  a  justice  of  the  peace  and 
present  at  it,  and  then  went  on — "  And  that  the  said  B.  K.,  being  such  justice  of  the  peace 
as  aforesaid,  and  disregarding  the  duty  of  iiis  said  office,  did  not  apprehend  or  restrain  the 
said  persons  so  unlawtully,  riotously  and  tunmltuously  assembled  as  last  aforesaid,  or  any 
of  them,  or  endeavour  so  to  do,  or  use  any  means  or  endeavours  whatsoever  to  suppress 
and  put  an  end  to  the  said  unlawful,  riotous  and  tumultuous  assembly,  or  execute  or  endea- 
vour to  execute  any  of  the  powers  and  authorities  by  the  laws  of  this  realm  vested  in  the 
said  B.  K.  as  such  justice  of  the  peace  as  last  aforesaid,  in  that  behalf;  but  the  said  B.  K. 
then  and  there  unlawfully,  wilfully  and  contemptuously  refused,  neglected  and  omitted  to 
apprehend  or  restrain  the  said  rioters,  or  any  of  them,  or  endeivour  so  to  do,  or  to  use  any 
means  or  endeavours  whatsoever  to  suppress  and  put  an  end  to  the  said  unlawlul,  riotous 
and  tumultuous  assembly,  or  execute  or  endeavour  to  execute  any  of  the  powers  and 
authorities  by  the  laws  of  this  realm  vested  in  liim  the  said  B.  K.  as  justice  of  the  peace 
aforesaid,  in  that  hehalf;  and  then  and  there  unlawfully  permitted  and  suffered  the  said 
persons  so  unlawfully,  riotously  and  tumultuously  assembled,  to  be  and  continue  there  so 
unlawfully,  riotously  and  tnmultuousiy  assembled,  for  a  lonsj-  space  of  time,  to  wit,  for  the 
gpace  of  four  hours,  contrary  to  the  duty  of  his  said  office  of  justice  of  the  peace  as  afore- 
said,  in  contempt,"  ifcc. 

The  sixth  count  was  nearly  similar  to  the  fifth  count,  except  that  it  slated  the  riot  in 
rather  more  general  terms. 

Lord  Mansfield  ciiarged  the  jury  generally,  that  "  A  magistrate  may  assemble  all  the 
king's  subjects  to  quell  a  riot,  and  may  call  in  the  soldiers,  who  are  subjects  and  may  act 
as  such;  but  this  should  be  done  with  great  caution;  and  that  at  the  time  of  the  riot,  he 
might  repel  force  by  force  before  the  reading  of  the  proclamation  from  the  riot  act.  If," 
he  declared,  "on  a  riot  taking  i)lacQ,  tlie  magistrate  neitlier  reads  the  proclamation  from 
the  riot  s.ct,  nor  restrains  nor  appiehcnds  the  rioters,  nor  gives  any  order  to  fire  on  them, 
4i 


518  OFFENCES  AGAINST  SOCIETr. 

unknown  to  the  said  attorney-general,  with  force  and  arms  unlaw- 
fully, riotously  and  tumultuously  assembled  themselves  together,  to 
the  disturbance  of  the  public  peace,  tranquillity,  order  and  govern- 
ment of  this  realm,  and  to  injure  and  destroy  the  properties  of  divers 
quiet  and  peaceable  subjects  of  our  said  lord  the  king;  and  being  so 
assembled  did  then  and  there  unlawfully,  riotously,  tumultuously  and 
with  force,  feloniously  and  against  the  form  of  the  statute  in  such 
case  made  and  provided,  begin  to  demolish  and  pull  down  the  dwell- 
ing house  of  M.  C,  there  situate  and  being,  and  did  also  then  and 
there  unlawfully,  riotously  and  tumultuously  injure  and  destroy  the 
household  furniture  and  effects  of  divers  quiet  and  peaceable  subjects 
of  our  said  lord  the  king,  whose  names  are  at  present  unknown  to 
the  said  attorney-general,  and  commit  and  perpetrate  other  outrages 
and  enormities;  and  the  said  attorney-general  of  our  said  lord  the 
king  for  our  said  lord  the  king,  givetli  the  court  here  to  understand 
and  be  informed  that  B.  K.,  late  of  London  aforesaid,  esquire,  at  the 
time  of  the  said  unlawful,  riotous  and  tumultuous  assembly,  to  wit, 
on,  &c.,  and  before  and  afterwards,  was  mayor  of  the  City  of  London 
aforesaid,  and  also  one  of  the  keepers  of  the  peace  and  justices  of 
our  said  lord  the  king,  assigned  to  keep  the  peace  and  also  to  hear 
and  determine  divers  felonies,  trespasses  and  other  misdemeanors 
committed  within  the  said  City  of  London,  that  is  to  say,  at,  &c. ; 
and  tliat  the  said  B.  K.,  being  such  mayor  and  justice  of  the  peace  as 
aforesaid,  well  knew  of  and  was  personally  present  at  the  time  and 
place  of  the  said  unlawful,  riotous  and  tunuiltuous  assembly,  and 
whilst  the  said  persons  so  unlawfully,  riotously  and  tumultuously' 
assembled  were  conmiitting  and  perpetrating  the  aforesaid  felony, 
injuries,  outrages  and  enormities,  to  wit,  on,  &c.,  at,  &c. ;  and  it  was 
then  and  there  the  duty  of  the  said  B.  K.  as  such  mayor  and  justice 
of  the  peace  as  aforesaid,  for  the  dispersing  of  the  persons  so  unlaw- 
fully, riotously  and  tumultuously  assembled  as  aforesaid,  and  the 
suppressing  and  putting  an  end  to  the  said  unlawful,  riotous  and 
tumultuous  assembly,  to  have  then  and  there  made  or  caused  to  be 
made  proclamation  in  the  manner  prescribed  and  directed  in  and  by 
an  act  of  parliament,  made  in  the  parliament  of  the  lord  George  the 
First,  late  king  of  Great  Britain,  &,c.,  at  a  session  thereof  holden  at 
Westminster  in  the  County  of  Middlesex,  in  the  first  year  of  his 
reign,  entitled  "  an  act  for  preventing  tumults  and  riotous  assemblies, 
and  for  the  more  speedy  and  effectual  punishing  the  rioters."  And 
the  said  attorney-general  of  our  said  lord  the  king  for  our  said  lord 
the  king,  giveth  the  court  here  further  to  understand  and  be  informed, 
that  the  said  B.  K.,  being  such  mayor  and  justice  of  tiie  peace  as 
albresaid,  and  well  knowing  of  the  said  unlawful  and  tumultuous 
assembly,  and  being  so  present  as  aforesaid,  but  disregarding  his  duty 
as  such  mayor  and  justice  of  the  peace  as  aforesaid  and  the  directions 
contained  in  the  said  act  of  parliament  for  the  sup[)ressing  of  tumults 
and  riots,"'did  not  at  any  time  during  the  said  unlawful,  riotous  and 

nor  makes  any  use  of  a  military  force  under  liis  command,  ttiis  [s  prima  facie  evidence  of 
a  criminal  nc;rlcct.  of  duty  in  liim  ;  and  it  is  no  answer  to  tlic  cliargo  for  tiini  to  say  that 
he  was  afraid,  unless  liis  (ear  arose  from  such  danger  as  would  affect  a  firm  man  ;  and  if 
rather  than  apprelicnd  the  rioters  his  solo  care  was  for  liimscir,  this  is  also  neglect." 


MISCOXDLCT   BY  JUSTICF.S.  510 

tuniullnous  assembly,  make  or  cause  to  be  made  proclamation  in  the 
manner  prescribed  and  directed  by  tlie  said  act  of  parliament,  but 
then  and  there,  to  wit,  on,  itc,  at,  &c.,  wilfully,  obstinately  and  con- 
temptuously neglected,  refused  and  omitted  to  make  or  cause  to  be 
made  proclamation  in  the  manner  prescribed  and  directed  by  the  said 
act  of  parliament,  and  thereby  then  and  there  unlawfully  permitted 
and  suffered  the  said  persons  so  unlawfully,  riotously  and  tumultu- 
ously  assembled  as  aforesaid,  to  be  and  continue  there  unlawfully, 
riotously  and  tumultuously  assembled  as  aforesaid,  for  divers,  to  wit, 
four  hours,  doing,  committing  and  perpetrating  the  said  felony,  inju- 
ries, outrages  and  enormities,  contrary  to  the  duty  of  him  the  said  B. 
K.  as  such  mayor  and  justice  of  the  peace  as  aforesaid,  in  contempt, 
&.C.     {Conclude  as  in  book  1,  chap.  3). 

Against  a  justice  of  the  peace,  for  proceeding  to  the  duties  of  his  office  in 
a  state  of  intoxicution.(c) 

That  A.  B.,  &c.,  on",  &c.,  at,  &c.,  did  take  his  seat  as  a  justice  of 
the  peace  in  the  Couitty  of  Loudon,  tlie  ninth  of  August,  one  thousand 
eight  hundred  and  three,  on  the  bench  of  the  said  county  court,  and 
act  as  a  justice  and  member  of  the  court  then  and  there  sitting,  in 
giving  his  vote  upon  a  judicial  question  and  examination  at  the  time 
depending  in  the  said  court,  and  in  signing  the  minutes  of  its  proceed- 
ings as  presiding  justice  thereof,  while  he  the  said  A.  B.  was  in  a  state 
of  intoxication  from  the  drinking  of  spirituous  liquors,  which  rendered 
him  incompetent  to  the  discharge  of  his  duty  with  decency,  decorum 
and  discretion,  and  disqualified  him  from  a  fair  and  full  exercise  of  his 
understanding  in  matters  and  things,  at  the  time  and  place  last  men- 
tioned judicially  before  him,  to  the  great  disgrace  of  the  administra- 
tion of  public  justice,  and  to  the  evil  example  of  persons  in  authority; 
whereby  the  said  A.  B.  was  guilty  of  misbehaviour  in  his  office  of 
justice  of  the  peace  in  and  for  the  said  County  of  Loudon,  against, 
&.C.     [Conclude  as  in  book  1,  chap.  3). 

Against  a  justice  of  the  peace,  for  issuing  a  warrant  icithout  oath,  using 
falsely  the  name  of  a  third  party  as  prosecutor. [d) 

That  A.  B.,  on,  &c.,  at,  &c.,  out  of  malice  and  evil  disposition  to- 
wards a  certain  J.  H.,  a  surveyor  of  the  highway,  and  with  a  wicked 
and  malicious  intent  to  disquiet,  defraud  and  oppress  the  said  J.  H., 
and  falsely,  wickedly  and  maliciously  to  cause  the  said  J.  H.  to  be 
put  to  costs  and  expenses,  unjustly,  wickedly,  maliciously  and  unlaw- 
i'ully  wrote,  signed  and  issued  under  his  own  hand,  as  such  justice  of 
the  peace,  a  certain  warrant  or  summons,  to  a  constable  directed, 
commanding  him  to  summon  the  said  J.  H.  to  appear  before  him,  the 

(c)  Com.  r.  Alexander,  1  Va.  Cases  156. 

(d)  Wallace  v.  Com.,  2  Va.  Cases  130, 

To  this  indictment  the  defendant  pleaded  not  guilty,  and  the  jury  convicted  him  and 
asses-ed  his  fine  to  one  hundred  dollars.  The  Sn[)erior  Court  thereupon  entered  a  judo;, 
inent  against  him,  that  he  be  removed  from  his  office  of  justice  of  the  peace,  and  that  lie 
be  incapable  of  e.xcrcising  the  duties  of  the  same,  and  also  a  judirment  for  the  fine.  An 
application  for  a  writ  of  error  was  afterwards  refused  by  the  general  court. 


530  OFFENCES  AGAINST  SOCIETY. 

said  A.  B.,  to  answer  to  a  certain  complaint  and  information  of  a  cer- 
tain J.  W.,  made  against  liim  the  said  J.  H.,  for  not  keeping  a  road, 
{describing  it),  in  repair,  and  upon  that  warrant  or  summons  caused 
the  said  J.  H.  to  appear  before  him  the  said  A.  B.,  as  such  justice  of 
the  peace,  to  answer  the  complaint  aforesaid,  and  upon  a  hearing 
therein  did  not  acquit  the  said  J.  H.  of  the  complaint  aforesaid,  but 
unlawfully,  corruptly  and  wickedly  adjudged  the  said  J.  H.  to  pay 
the  costs  of  the  same;  whereas,  in  truth  and  in  fact,  the  said  J.  W. 
never  did  make  to  the  said  A.  B.,  nor  to  any  other  justice  of  the  peace, 
the  complaint  or  information  aforesaid  against  the  said  J.  H.,  nor  did 
the  said  J.  W.  nor  any  other  person  direct  the  said  prosecution,  but 
the  said  A.  B.  falsely  and  wickedly  used  the  name  of  the  said  J.  W. 
without  his  knowledge,  and  against  his  directions,  in  contempt  of  his 
the  said  A.  B.'s  oath  and  duty,  as  a  justice  of  the  peace,  to  the  evil 
example,  &c.     {Conclude  as  in  book  1,  chcip.  3). 

Against  a  justice  of  the  "peace  in  Pennsylvania,  for  refusal  to  deliver 
transcript  to  party  demanding  it.{e) 

That  W.  B.,  &c.,  being  a  justice  of  the  peace  in  and  for  the  district 
numbered  six,  composed  of  the  townships  of  B.  and  S.  in  the  said 
County  of  B.,  duly  commissioned  and  sworn  to  do  the  duties  of  the 
said  office  with  fidelity  and  according  to  law,  a  certain  suit  was  com- 
menced and  instituted  before  him  as  such,  of  which  suit  and  of  the 
cause  of  action  thereof  he  lawfully  had  jurisdiction  and  cognizance, 
wherein  a  certain  J.  B.  was  plaintiff,  and  a  certain  F.  C.  was  defend- 
ant, and  in  which  suit  the  said  W.  B.,  as  a  justice  of  the  peace,  en- 
tered judgment,  and  that  on,  (tc,  at,  &c.,  and  within  the  jurisdiction 
of  this  court,  with  force  and  arms,  &c.,  he  the  said  W,  B.,  as  a  justice 
of  the  peace,  did  unlawfully  refuse  to  make  out  a  copy  of  his  pro- 
ceedings at  large  in  the  said  suit,  and  deliver  the  said  copy  duly  cer- 
tified by  him  to  the  said  F.  C,  the  defendant  in  the  suit;  he  the  said 
F.  C,  having  then  and  there  required  and  demanded  the  same  of  the 
said  W,  B.  as  a  justice ;  and  he  the  said  F.  C.  then  and  there  did  ten- 
der unto  him  the  said  W.  B.  as  a  justice  of  the  peace,  eighteen  and 
three-quarter  cents,  the  just  and  legal  fee  of  l)im  the  said  W,  B.,  for 
his  services  in  that  behalf  aforesaid ;  to  the  great  hinderance  and  ob- 
struction of  public  justice,  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Against  a  justice  of  the  peace  in  Massachusetts,  for  extortion  generally.{f) 

That  A.  B.,  &c.,  on,  &c.,  then  being  one  of  the  justices  of  the  peace 
in   and  for  tlie  county  of  duly  and  legally  appointed  and  qua- 

lified to  perform  the  duties  of  that  office,  not  regarding  the  duties  of 


(f)  Bailey  ».  Com.,  5  R.  59.  This  indiclniont  is  under  tlie  Pennsylvania  act  of  20th 
March,  1810,  s.  2.'j,  and  was  sustained  by  tlic  ISuprenie  Court  ub  sufficiently  descriptive  of 
the  oflcnce  created  hy  that  section. 

(/)  Davis'  Prcc.  119.  This  indictment  is  founded  on  Massachusetts  statute  1795,  c. 
41,  s.  6,  and  may,  says  Mr.  Davis»  he  adopted  mutatis  mutandis,  for  extortions  by  all 
other  oflicers  and  persons  mentioned  in  tlio  statute. 


MISCONDUCT   BY  JUSTICES.  521 

said  office,  but  contriving  and  intending  one  C.  D.  to  injure  and  op- 
press, on  the  said  day  of  in  the  year  aforesaid,  at 
in  the  county  aforesaid,  by  colour  of  his  said  office,  did  wilfully,  cor- 
ruptly and  extorsively  demand,  take  and  receive  of  liini  the  said  C. 
D.  a  greater  fee  than  is  allowed  and  provided  by  law  for  the  trial  of  a 
certain  issue,  then  and  therein  due  form  of  law  joined  and  pending 
before  him  the  said  A.  B.,  as  a  justice  of  the  peace  for  the  said  county 
of  between  the  aforesaid  C.  D.  and  one  E.  F.,  in  a  certain  civil 
action  commenced  and  entered  by  the  said  C.  D.  against  the  said  E. 
F.,  before  him  the  said  A.  B.,  justice  of  the  peace  as  aforesaid,  at  a 
justice's  court  duly  appointed,  and  then  and  there  held  by  him  the 
said  A.  B.,  to  wit,  the  sum  of  for  the  trial  of  the  said  issue, 
which  sum  is  more  than  the  fee  allowed  and  provided  by  law  for  the 
service  aforesaid ;  contrary  to  the  duty  of  him  the  said  A.  B.  in  his 
office  aforesaid,  against,  &c.     [Conclude  as  in  book  \,  chap.  3). 

Against  a  justice  of  ike  peace  for  extortivg  fees  for  discharging  a  re- 
cognizance, and  for  not  returriing  the  same  to  the  court  for  which 
it  icas  taken. (g) 

That  N.  J.,  of,  &c.,  on,  &c.,  and  continually  afterwards,  until  the 
day  of  the  taking  of  this  inquisition,  was,  and  yet  is  one  of  the  jus- 
tices of  the  peace  within  and  for  the  said  county  of,  &c,,  duly  and 
legally  appointed  and  authorized  to  discharge  the  duties  of  that  office. 
Nevertheless  the  said  N.  J.,  not  regarding  the  duties  of  his  said  office, 
but  perverting  the  trust  reposed  in  him,  and  contriving  and  intending 
the  citizens  of  this  commonwealth,  for  the  private  gain  of  him  the 
said  N.  J.  to  oppress  and  impoverish,  and  the  due  execution  of  justice, 
as  much  as  in  him  lay,  to  hinder,  obstruct  and  destroy,  on  the 
day  of  and  between  that  day  and  the  day  of  the  finding  of  this 

bill,  at  aforesaid  in  the  county  aforesaid,  under  colour  of  his 

said  office  of  justice  of  the  peace  for  the  said  county  of  a  certain 

sum  of  money,  to  wit,  the  sum  of  for  not  .returning  a  certain 

recognizance  before  him,  within  the  time  aforesaid,  taken  for  the  ap- 
pearance of  one  G.  J.  at  a  certain  term  of  the,  [here  describe  the  court 
to  which  the  recognizance  was  made  returnable),  to  be  liolden  next 
after  the  taking  of  the  recognizance  aforesaid  from  the  said  G.  J.,  un- 
lawfully, unjustly  and  extorsively  did  exact,  receive  and  have;  and 
although  the  said  next  court  of,  [here  describe  the  court),  for  the 
couiuy  aforesaid,  after  the  taking  of  the  recognizance  aforesaid,  and 
to  which  the  said  recognizance  ought  to  have  been  returned,  was  held 
at  in  the  county  aforesaid,  on  the  Tuesday  of  in  the 

year  aforesaid,  in  the  due  course  of  law,  the  said  N.  J.  the  said  recog- 
nizance, to  the  court  aforesaid,  as  of  right,  and  according  to  his  duty 
and  the  laws  of  said  commonwealth  he  ought  to  have  done,  did  not 
return,  but  suppressed  the  same,  against  the  duties  of  his  said  office, 
to  the  great  hinderance  of  justice,  against,  &.c.  [Conclude  as  in 
book  1,  chajj.  3). 

{g)  D:ivis'  Prec.  122;  1  Trem.  P.  119.  This  indictment  would  be  more  correct  if  it 
contained  an  alicg^ation  of  the  particular  nature  and  condilion  of  the  recognizance,  and  also 
thai  tiie  magistrate  was  authorized  to  take  it.- 

44* 


522  OFFENCES  AGAINST  SOCIETY. 

Against  a  constable  for  extortivg  money  of  a  person  apprehended  by  him 
vjjon  a  uarrani,  to  let  him  go  at  large. {h) 

That  A.  B.,  of  &c.,  on  at  in  the  county  aforesaid,  then 

and  tliere  being  one  of  the  constables  of  the  town  of  in  the 

county  aforesaid,  did  take  and  arrest  one  C.  D.  by  virtue  of  a  warrant 
duly  made  and  issued,  which  he  the  said  A.  B.  then  and  there  had, 
directed,  &c.,  {here  insert  the  ioarrmit)\  and  that  the  said  A.  B.,  him 
the  said  C.  D.  then  and  there  had  in  his  custody  by  virtue  of  the  said 
warrant,  and  that  the  said  A.  B.  afterwards,  to  wit,  on  at 

in  the  county  aforesaid,  unlawfully,  corruptly  and  extorsively,  for 
the  sake  of  gain  and  contrary  to  the  duty  of  his  said  office,  did  extort, 
receive  and  take  of  and  from  the  said  C.  D.  the  sum  of  for  dis- 

charging the  said  C.  D.  out  of  the  custody  of  him  the  said  A.  B.,  con- 
stable as  aforesaid,  without  conveying  the  said  C.  D.  before  any 
justice  of  the  peace  in  and  for  said  county,  or  before  any  other  lawful 
authority,  to  answer  to  the  charges,  matters  and  things  whereof  he 
stood  accused  and  charged  as  aforesaid;  against,  &c.  [Conclude  as 
in  book  1 ,  chajJ.  3). 

Against  a  constable  for  neglecting  to  execute  a  wai~rani  in  a  civil  case. 

That  wliereas,  A.  K.  and  D.  F,,  Esqrs.,  two  of  the  justices  of  the 
peace  of  the  said  County  of  P.,  duly  elected  and  commissioned,  did 
on,  &c.,  at,  &c.,  and  within  the  jurisdiction  of  this  court,  issue  their 
warrant,  under  their  hands  and  seals,  to  any  constable  of  the  said 
county  directed,  setting  forth  that  A.  T.,  Esq.,  one  of  the  sub-lieuten- 
ants of  the  said  county,  having  before  them  the  said  justices  obtained 
judgment  in  due  and  regular  form  of  law,  against  T.  F.,  for  the  sum 
of  twenty-five  pounds  ten  shillings,  lawful  money  of  Pennsylvania,  by 
him  the  said  A.  T.  expended  in  procuring  a  substitute  to  serve  in  the 
militia,  in  the  first  class  of  the  filth  battalion  of  the  county  aforesaid, 
in  the  place  of  him  the  said  T.  F.  with  costs;  that  the  said  constable 
was  thereby  required  and  enjoined  to  levy  the  said  sum  of  twenty- 
five  pounds  ten  shillings  and  costs,  with  the  costs  thereby  accruing,  by 
distress  and  sale  of  the  goods  and  chattels,  lands  and  tenements  of  the 
said  T.  F.  as  the  law  directed,  returning  the  overf)lus,  if  any,  to  the 
owner.  And  the  inquest  aforesaid,  do  say,  tliat  the  said  warrant  was 
on,  &c.,  delivered  and  offered  and  tendered  to  be  delivered  to  J.  Z., 
then  and  there  being  constable  of  the  township  of  VV.,  one  of  the 
townships  of  the  said  County  of  P.,  to  be  by  him  executed.  And  the 
inquest  aforesaid,  do  further  say,  that  the  said  J.  Z.,  then  and  there 
being  constable  of  the  said  township  of  W.,  on,  &c.,  and  ever  since, 
until,  &c.,  at,  &c.,  and  within  the  jurisdiction  of  this  court,  did  neglect 
to  execute  the  said  warrant,  against,  &,c.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 


(A)  Davis' Prcc.  121  ;  see  2  Chit.  2!t5,  21)6;  Cro.  C.  C.  327,  fitli  cd. ;  2  Stark.  585  ;  and  for 
other  |)rc«edcnt,s  for  extortion  in  2  Cliit.  2!ifi,  2!)7  ;  CVo.  C.  C.  327  ;  1  'I'rcin.  I'.  C.  Ill,  115 ;, 
2  Cliit.  300,  agiiLusl  a  collector  for  extorling  inunej  by  colour  of  his  oiiice. 


MISCONDUCT   BY  COXSTABLES,  &C.  523 

Against  a  constable  for  neglectivg  to  execute  a  justice^s  wan'ant  for  the 
apprehension  of  a  person.{i) 

That  heretofore,  to  wit,  on,  &c.,  at,  &c.,  W.  N.,  Esq.,  then  and  still 
being  one  of  the  justices  assigned,  &c.,  did  make  a  certain  warrant  in 
writing,  under  his  hand  and  seal,  bearing  date  on,  &c.,  directed  to  tlie 
constable  of  the  parish  of  G.  in  the  County  of  D.,  thereby  in  her  ma- 
jesty's name  charging  and  commanding  the  said  constable  that,  &c., 
[here  set  forth  the  ivurrant);  which  said  warrant,  afterwards,  to  wit, 
on,  &,c.,  at,  &c.,  aforesaid,  was  duly  endorsed  for  execution  by  and 
in  the  name  of  X.  Y.,  Esq.,  then  being  mayor  and  one  of  her  majes- 
ty's justices  of  the  peace  in  and  for  the  borough  of  D.  in  the  said 
County  of  D,,  and  which  said  warrant  so  endorsed,  afterwards,  to 
wit,  on,  &c.,  at,  &c.,  was  delivered  to  T.  O.,  late  of,  &c.,  then  and  still 
being  constable  of  the  said  parish  of  G.  in  the  county  aforesaid,  in 
due  form  of  law  to  be  executed;  and  the  said  T.  0.  was  then  and 
there  required  to  execute  the  same  by  bringing  the  body  of  the  said 
E.  R.  before  the  said  W.  N,,  at  the  time  and  place  and  for  the  pur- 
pose in  the  said  warrant  mentioned.  And  the  jurors,  &c.,  that  al- 
though the  said  T.  0.  could  and  might  and  ought  to  have  executed 
the  said  warrant  accordingly,  the  said  T.  0.  so  being  constable  of  the 
said  township  of  G.  in  the  County  of  D.  aforesaid,  not  regarding  the 
duty  of  his  said  office,  did  not,  nor  would,  execute  the  said  warrant 
as  aforesaid,  or  otherwise  howsoever,  but  unlawfully,  wilfully,  obsti- 
nately and  contemi>tuously  neglected  and  refused  so  to  do,  and  there- 
in failed  and  made  default;  to  the  great  hinderance  of  public  justice, 
in  contempt,  &c.,  to  the  evil,  &c.,  and  against,  &c.(j)  (^Conclude  as 
in  book  1,  chap.  3). 

Against  a  constable  frr  extorting  and  obtaining  money  under  colour  of 
discharging  a  bench  irarrunt.{li) 

That  A.  B.,  late  of,  &:c.,  on,  &c.,  then  being  one  of  the  constables  of 
the  said  parish,  at,  &c.,  did  take  and  arrest  one  C.  D.  by  colour  of  a 
certain  warrant  called  a  bench  warrant,  which  he  the  said  A.  B.  then 
and  there  alleged  that  he  had  in  his  possession ;  and  that  the  said  A.B^, 
afterwards,  and  while  the  said  C.  D.  so  remained  in  his  custody  as 
aforesaid,  on,  &c.,  at, '&c.,  unlawfully,  corruj)tly,  deceitfully  and  ex- 
torsively  and  by  colour  of  his  said  ofhce,  did  extort,  receive  and  take 
of  and  from  the  said  C.  D.  the  sum  of  two  guineas,(/)  as  and  for  a  fee 

(i)  Dickinson's  Q.  S.  6th  ed.  435. 

{j)  Tlie  33  Geo.  III.  c.  5.5,  <rives  summary  jurisdiction  to  justices  to  pimish  parish 
officers  for  neglect  of  duly,  but  tliiit  remedy  does  not  supersede  the  ancient  one  by  indict- 
ment; Dickinson's  Q.  S.  Glii  ed.  435. 

(k)  Dickinson's  Q.  S.  6th  ed.  43.3. 

(/)  An  information  ajrainst  tlie  ferryman  over  the  Menai,  laid  the  ferry  to  be  ancient 
from  time  out  of  mind,  and  "that  \d.  was  the  usual  rate  of  passage  for  man  and  horse,  Id. 
for  20  cattle,  "Xd.  for  20  sJicup,  Otc,  and  that  defendant  being  the  common  ferryman  be- 
tween^  &.C.,  and  day  of  exhibiting  information,  injustc  oppressive  et  deceptive  cepit  ct  e.v- 
torsit  de  diversis  ligcis  et  suddilis  domini  regis  ignotis  to  the  attorney-general,  passing 
that  way,  div(;rsas  dcnariorum  sutnmas  excedent  anticjuam  rotam  et  prelium  pro  passajrio 
ct  transportalionc  suis  et  avcrinrnm  suorum,  viz.  pro  passagio  cujuslihet  persona;  cum  cqno 
suo,  2d.,  el  pro  quiljuslilei  '20  calaUiSy,2s.  cl  sic  sccaiul  axiu.  ralaiu  praedictam  pro  majort 


5'2i  OFFENCES  AGAINST  SOCIETY. 

due  to  him  the  said  A.  B.  as  such  constable  as  aforesaid,  for  the  ob- 
taining and  discharging  of  the  said  warrant,  as  he  the  said  A.  B.  then 
and  there  alleged  ;  whereas,  in  truth  and  in  fact,  no  fee  whatever 
was  then  due  from  the  said  C.  D.  to  the  said  A.  B.,  as  such  constable 
in  that  behalf;  in  breach  of  the  duty  of  his  said  office  of  constable, 
and  against,  &c.(m)     [Conclude  as  in  book  1,  chap.  3). 

Against  constables  for  neglecting  to  attend  the  sessions.{n) 

That  J.  H.  and  A.  Y.,  &c.,  on,  6tc.,  then  and  long  before  were  con- 
stables of  the  township  of  Blockley  in  the  said  county,  and  that  T.  A. 
of  the  same  county,  yeoman,  on  the  day  and  year  aforesaid,  at  the 
county  aforesaid,  was  a  constable  of  the  township  of  B.  in  the  said 
county ;  and  that  S.  W.,  &c.,  on,  &c.,  and  long  before  was  a  consta- 
ble of  the  township  of  L.  D.  in  the  said  county,  and  that  R.  W.,  &c., 
on,  &c.,  and  long  before  .was  a  constable  of  the  township  of  the  manor 
of  M.  in  the  said  county,  and  that  B.  V.,  &c.,  on,  &.C.,  and  long  be- 
Ibre  was  a  constable  of  the  township  of  0.  in  the  said  county.  And 
the  inquest  aforesaid,  upon  their  oaths  and  affirmations  aforesaid,  do 
present,  that  the  said  J.  H.,  A.  Y.,  T.  A.,  S.  W.,  R.  W.  and  B.  V.,  so 
lieing  constables  as  aforesaid,  the  duty  of  their  office  not  regarding, 
vmlawfully  and  contemptuously,  on,  &c.,  at,  &c.,  did  absent  themselves 
and  each  of  them  did  absent  himself  1mm  the  General  Quarter  Ses- 
sions of  the  Peace  and  Gaol  Delivery,  holden  at  P.,  in  the  said 
county,  on  the  day  and  year  aforesaid,  for  the  county  aforesaid,  and 
then  and  there  did  neglect  to  make  a  return  to  the  said  sessions  of  all 
and  such  persons  as  were  retailers  of  spirituous  liquors  by  measure 
less  than  one  quart  within  their  respective  townships,  to  the  great 
hinderance  of  public  justice,  and  against,  &c.  [Conclude  as  in  book 
1,  chap.  3). 

Against  a  high  constable  for  not  obeying  an  order  of  sessions.{p) 

That  at  the  General  Quarter  Sessions  of  the  Peace,  holden  for  the 
County  of  B.,  at,  &c,,  in  and  for  the  county  aforesaid,  on,  &.c.,  be- 
fore A.  B.,  C.  D.,  E.  F.  and  G.  H.,  Esqrs.,  and  others  their  fellows, 
justices  of  our  said  lady  the  queen,  assigned,  &c.,  it  was  ordered  by 
the  said  court  there,  [here  set  out  the  order  of  sessions  in  the  past 
tense),  as  by  the  said  order,  reference  thereto  being  had,  will  more 
fully  and  at  large  appear,  which  said  order  was  afterwards,  to  wit. 


vel  minnri  numcro  averiorum."  .Tudgment  arrested  for  accumiiliting  several  offences  un- 
der a  gfeneral  charpe;  each  extortion  from  every  paitieiilar  person  beiiig  a  set)arat(;  offence 
wliich  sliould  have  been  hiid  singly,  so  as  Ife  enat)le  the  court  to  proportion  the  fine  to  each 
firtence  ;  U.  v.  Roberts,  C'arlii.  226;  Sliower  1^!),  S.  C.  Keiied  on  in  R.  v.  Foster,  Ld. 
Rayrn.  175,  and  in  R.  v.  Rowand.     Dieliinson's  Q.  S.  6th  ed.  'i'.i'.i. 

(in)  li'anv  fee  may  be  taken,  the  legal  amount  must  be  stated,  or  the  indictment  will  be 
bad  ;  I?eg.  v.  Levy,  in  Q.  R.  8  .lunc,  ld3I) ;  JMake's  case,  3  Leon.  2()8.  If  the  extortion  is 
in  levying  an  execution,  tiie  amount  of  extortion  must  be  laid  and  shown.  Dickinson's  Q. 
8.  6th  ((h  433. 

(n)   Drawn  by  Mr.  Bradford  in  1785. 

{»)  Dickinson's  Q.  S.  6th  cd.  441. 


MISCONDUCT  BY  TOLL  COLLECTOR,  &C.  525 

on,  kc,  at,  &c.,  personally  served(/;)  on  the  said  C.  D.,  one  of  the  high 
constables  in  the  said  order  named,  and  the  said  C.  D.  then  and  there 
had  notice  of  the  said  order,  and  was  then  and  there  requested  to 
obej'^  the  same  as  therein  mentioned ;  nevertheless,  the  said  C.  D.^ 
late  of,  &c.,  then  being  one  of  the  high  constables  in  the  said  order 
mentioned,  unlawfully  and  contemptuously,  upon  being  so  served 
with  the  said  order  as  aforesaid,  did  neglect  and  refuse  to,  (here  slate 
what  the  order  required  the  defendant  to  do),  as  by  the  said  order 
he  the  said  C.  D.  was  required  to  do,  nor  hath  lie  the  said  C.  D.,  at 
any  time  since  complied  with  or  obeyed  the  said  order,  although 
often  requested  so  to  do  ;  in  contempt  of  the  said  justices,  and  against, 
&c.     (Conclude  as  in  book  \,chap.  3). 

Against  a  toll  collector  for  extorting  toll  from  a  person  icho  had  com- 
pou/tded.{q) 

That  C.  B.,  &c.,  by  colour  of  being  collector  and  receiver  of  the 
moneys  and  tolls  at  a  certain  turnpike  or  toll-bar  gate,  situate  in,  &;c., 
aforesaid,  on,  &c.,  with  force  and  arms  at,  &c.,  aforesaid,  unlawfully, 
extorsively  and  deceitfully,  and  of  his  own  wrong,  extorted,  asked, 
demanded  and  received  of  one  A.  X.,  husbandman,  the  sum  of  one 
shilling  and  sixpence,  for  a  cart  and  two  horses,  that  is  to  say,  six- 
pence for  a  cart  and  sixpence  for  each  of  two  horses,  then  and  there 
drawing  the  said  cart  belonging  to  him  the  said  A.  Z.,  for  permittirig 
the  same  to  pass  through  the  said  turnpike  or  toll-bar  gate,  under 
colour  and  pretence  that  the  said  A,  Z.  had  neglected  to  take  out  and 
obtain  from  him  the  said  C.  B.  such  a  ticket  or  certificate  of  composi- 
tion and  exemption  from  toll,  as  is  permitted  by  a  certain  act  of  par- 
liament, passed  in  the  thirty-sixth  year  of  the  reign  of  his  late  ma- 
jesty king  George  the  Third,  entitled,  (here  insert  the  title  of  the 
act);  whereas,  in  truth  and  in  fact,  he  the  said  A.  Z.  had  taken  and 
obtained  from  the  said  C.  B.,  and  was  then  in  possession  of  such 
ticket  or  certificate  of  composition  and  exemption  as  aforesaid,  signed 
with  the  name  of  the  said  C.  B.,  and  dated,  {here  set  out  the  date  to 
show  that  it  was  luithin  the  terms  of  the  act),  as  in  the  said  men- 
tioned act  specified;  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 


(p)  This  is  necessary,  and  the  want  of  this  allegation  will  not  be  supplied  by  the  alleg-a- 
tion  that  the  defendant  was  requested  to  comply  with  tlie  terms  of  the  order ;  R.  v.  King- 
stone,  6  East  R.  52;  R.  v.  Moorhouse,  Cald.  554;  Dickinson's  Q.  S.  6lh  ed.  441  ;  Arch. 
C.  P.  5lh  Am.  ed.  691  ;  see  for  forms  of  a  similar  nature,  Cro.  Cir.  Com.  327;  R.  v.  I\Iere- 
dith,  R.  &,  R.  46 ;  R.  v.  Booth,  ih.  47  ;  R.  v.  White,  ('aid.  183 ;  R.  v.  Robinson,  2  Burr.  799  ; 
R.  V.  Bahne,  Cowp.  650 ;  R.  *.  Fearnly,  1  T.  R.  316 ;  R.  v.  Davis,  Say  163. 

(9)  Dickinson's  Q.  S.  6th  ed.  433. 

Two  observations  particularly  apply  to  this  precedent : 

1st.  That  statute  3  Ed.  I.  c.  26,  was  only  in  atfirmance  of  the  common  law,  and  there- 
fore all  public  officers,  properly  so  called,  vvhctlier  mentioned  in  that  statute  or  not,  seem  to 
be  subject  to  indictments  for  extortion;  Dalt.  c.  41  ;  1  Russ.  C.  &.  M.  144. 

2d.  That  the  question  of  exempt,  or  not  exempt,  from  toll  of  a  turnpike  gate,  cannot  be 
tried  on  an  indictment  of  a  bar-keeper  for  extoition,  the  general  right  to  take  not  having 
been  denied,  nor  the  ground  of  exemption  notified ;  R.  v.  Hanilyn,  4  Canipb.  379 ;  Dick- 
inson's Q.  S.  6th  ed.  433. 


526  OFFEXCES  AGAIN'ST  SOCIETY. 

Against  an  injikceper  foj'  not  receiving  a  guest,  he  having  room  in  his 
inn  at  the  time.{r) 

That  before  and  at  the  time  hereui  next  mentioned,  T.  1,,  late  of, 
(tc,  labourer,  was  an  innkeeper  and  did  keep  a  common  inn  for  the 
accommodation  of  travellers,  that  is  to  say,  a  certain  common  inn 
called  the  Bell  Inn,  together  with  certain  stables  for  horses  attached 
to  the  said  inn,  and  which  said  inn  and  stables  are  situate  in  the 
parish  and  county  aforesaid,  tt  and  that  whilst  the  said  T,  1.  was  such 
iimkeeper,  and  so  kept  the  said  inn  and  stables  as  aforesaid,  to  wit, 
on,  &c.,  at,  &c.,  one  S.  P.  W.,  then  and  there  being  a  traveller,  came 
to  a  certain  outer  door  of  the  said  inn,  such  outer  door  then  and  there 
being  a  usual  door  of  entrance  into  the  said  inn  for  travellers  and 
other  persons,  and  then  and  there  required  the  said  T.  I.  to  suffer  and 
permit  him  the  said  S.  P.  W.  to  enter,  and  to"  stay  and  to  lodge  at  the 
said  inn  for  and  during  the  niglit  of  the  same  day,  and  to  suffer  and 
permit  a  certain  horse  upon  which  the  said  S.  P.  W.  then  and  there 
rode,  to  enter  and  stay  and  lodge  in  the  said  stables  for  and  during 
the  time  aforesaid;  t  and  that  the  said  S.  P.  W.  was  then  and  there 
ready  and  willing,  and  then  and  there  offered  the  said  T.  I.  to  pfay 
him  a  reasonable  sum  of  money  for  such  lodging  for  himself  the  said 
S.  P.  W.  and  his  liorse ;  t*  and  that  neither  was  the  said  inn  nor  were 
the  said  stables  at  the  time  of  such  application  by  the  said  S.  P.  W. 
as  aforesaid,  fully  occupied,  but  there  was  then  and  there  sufficient 
room  in  the  said  inn  for  the  accommodation  and  entertainment  of  the 
said  S.  P.  W.  therein  ;  and  there  was  then  and  there  sufficient  room 
in  the  said  stable  for  the  accommodation  and  entertainment  of  the 
said  horse  for  and  during  the  time  aforesaid ;  *  but  that  the  said  T.  I. 
not  regarding  his  duty  as  such  innkeeper,  did  not  nor  would  at  the 
said  time  when  he  was  so  requested  as  aforesaid,  suffer  or  permit  the 
said  S.  P.  W,  to  enter  to  stay  or  lodge  at  the  said  inn  as  aforesaid 
during  the  time  aforesaid,  nor  did  nor  would  the  said  T,  I.  at  the  said 
time  when  he  was  so  requested  as  aforesaid,  suffer  or  permit  the  said 
horse  of  the  said  S.  P.  W.  upon  which  the  said  S.  P.  W.  rode  as 
aforesaid,  to  enter  or  lodge  in  the  said  stables  for  or  during  the  time 
aforesaid;  but  so  to  do,  the  said  T.  I.  then  and  there  without  sutficient 


(r)  Dickinson's  Q.  R.  6tli  ed.  438. 

Tliis  w:is  tlic  form  used  in  R.  v.  Juens,  7  C.  &  P.  213.  The  defendant  was  convicted 
and  fined  twenty  sliillings.  Tlie  niiirjirinal  note  is  thus:  "An  indictnieiit  lies  against  an 
innkeeper  who  refuses  to  receive  a  jruest,  he  hiivinjr  room  in  his  house  at  tlie  time;  (and  it 
is  not  necessary  for  the  guest  to  tender  llie  price  of  liis  entertainment  if  liis  rejection  is 
not  on  that  srround  ;  doubted  by  1-d.  Abin-r(u  C.  IJ.,  Fell  ?j.  Knijjht,  8  M.  <fe  W,'276),  and 
it  is  no  defence  for  the  innkeeper  that  the  iri't'sl  was  travellinjjf  on  a  Sunday  and  at  an 
hour  of  the  nicrht  after  the  innkeeper's  family  had  gone  to  bed,  nor  that  the  g-uest  refused 
to  tell  his  name  and  abode,  as  the  innkee[)er  has  no  right  to  insist  upon  knowing  those 
particulars;  but  if  tiie  guest  come  to  the  inn  drunk  or  beliaves  in  an  indecent  or  improper 
manner,  the  innkeeper  is  not  bound  to  receive  him."  Hawk.  b.  I,  c.  78,  s.  2,  is  full  on 
this  point,  and  adds,  "Also  it  is  said,  that  a  |)erson  keeping  a  common  inn  may  be  coni- 
p<ll(;d  by  the  constable  of  the  town  to  receive  and  entertain  as  his  guest  such  a  person  as 
iil)ove,  being  a  traveller.  A  trav(;llcr  is  entitled  to  reasonable  accommodation,  but  cannot 
select  a  p;irlicular  room  or  insist  on  sitting  uj)  ail  night  in  a  bed-room  when  a  sitting  room 
is  offerfrfl  ;  an  innkeeper  must  admit  all  p(!rso!)s  who  apply  pea<'eably  to  be  admitted  as 
guests  ;"  Hawthorn  v.  Hammond,  C.  &.  K.  4U4;  .sec  Sunbalf  ».  Alford,  3  M.  &-  W.  218. 


INNKEEPER   RErUSING  TO  RECEIVE  GUEST.  527 

cause  wholly  neglected  and  refused ;  to  the  great  damage  of  the  said 
S.  P.  W.,  to  the  evil  example,  &c.,  and  against,  &c.  [Conclude  us 
in  book  1,  chap.  3). 

Second  count. 

That  whilst  the  said  T.  I.  was  such  innkeeper  and  so  kept  the  said 
inn  and  stables  as  aforesaid,  to  wit,  on,  &c.,  at,  &c.,  the  said  S.  P.  W. 
then  being  a  traveller,  came  to  a  certain  outer  door,  &c.,  [as  in  the 
Jirst  count,  omitting  the  ivords  betiveen  t  and  t*). 

Third  connt.  Similar  to  the  second,  except  that  it  also  omitted  the 
allegation  betiveen  f  *  and  *,  and  all  jnention  of  the  horse. 

Fourth  connt.  Same  as  first  to  ff,  and  then  proceed: 
And  that  whilst  the  said  T.  I  was  such  inkeeper  and  so  kept  the  said 
inn  as  aforesaid,  to  wit,  on,  &c.,  at,  &c.,  the  said  S.  P.  W.  then  and 
there  being  a  traveller,  came  to  the  said  inn,  and  then  and  there 
required  the  said  T.  I.  to  suffer  and  permit  him  the  said  S.  P.  W.  to 
enter  and  to  stay  and  to  lodge  at  the  said  inn  for  and  during  a  reason- 
able time  for  the  rest  and  refreshment  of  him  the  said  S.  P.  W.  in  the 
said  inn,  and  that  the  said  T.  I.  not  .regarding  his  duty  as  such  inn- 
keeper, did  not  nor  would  at  the  said  time  when  he  was  so  requested 
as  last  aforesaid,  suffer  or  permit  the  said  S.  P.  W.  to  enter  or  stay  or 
lodge  at  the  said  inn  as  last  aforesaid;  but  so  to  do,  the  said  T.  I. 
then  and  there  without  any  sufficient  cause  wholly  neglected  and 
refused;  to  the  great  damage,  &c.(.y)  {Conclude  as  in  book  1, 
chaj}.  3). 

.^gainst  an  innkeeper  refusing  to  entertain  foot  travellers. (f) 

That  A.  B.,  late  of  the  county  aforesaid,  then'  and  there  being  a 
licensed  iimkeeper  and  keeping  a  liouse  of  public  entertainment,  on, 
&c.,  at,  &c'.,  with  force  and  arms,  &c.,  unlawfully  and  without  re;i- 
sonable  cause  did  refuse  to  entertain  and  accommodate  a  certain 
person  to  the  grand  inquest  aforesaid  unknown,  the  said  person  then 
and  there  being  a  traveller  on  toot  and  applying  for  such  entertain- 
ment and  accommodation,  to  the  great  damage  of  the  person  so 
travelling  on  foot  as  aforesaid,  to  the  public  injury,  and  against,  &,c. 
{Conclude  as  in  book  1,  chap.  3). 

And  the  grand  inquest  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  further  present,  that  the  said  A.  B.,  late  of  the  county 
aforesaid, 7Ae?i  and  there  being  a  licensed  innkeeper{v),  and  keeping 
a  house  of  public  entertainment  for  the  accommodation  of  the  good 

(s)  Tliis  precpclcnt  may  be  classed  under  neglects  of  duties  imposed  by  common  law; 
Dickinson's  Q.  S.  6tli  ed.  4.39. 

it)  The  above  indictment,  as  it  appears  by  a  manuscript  note  of  W.  H.  Dillingham,  Esq., 
of  this  city,  to  whose  kindness  I  am  indebted  for  a  number  of  valuable  forms  contained 
in  the  precedinnr  p;iges,  was  prepared  in  the  case  of  the  Innkeepers  of  Chester,  and  sup- 
ported by  President  Wilson,  atler  argument.- 

In  the  above  c.ise  it  was  decided  that  the  common  law  principle  embraced  in  the  above 
cliarge  extends  in  Pennsylvania;  that  it  is  not  supi)Hed  or  altered  by  any  act  of  assembly; 
tliat  the  above  indictment  is  good  in  form,  but  that  in  order  to  su|)port  the  indictinenl  a 
tender  must  be  proved,  or  an  otfer  to  pay  and  waver  of  tender  by  the  landlord  ;  4  Ijla.  Com. 
167,  168;  1  Hawk.  P.  C.  2-25,  old  cd. 

(»)  The  words  in  ittilics  were  not  inserted  in  the  indictment  ajsi^ainst  the  innkeeper  of 
Chester  in  the  second  count,  but  the  coutt  liiought  the  indictment  could  only  be  supported 


528  OFFENCES  AGAINST  SOCIETY. 

citizens  of  this  commonwealth  and  strangers  thereby  passing  and 
repassing,  as  well  travellers  on  foot  as  others,  afterwards,  to  wit,  on 
the  same  day  and  year  aforesaid,  at  the  county  aforesaid,  with  force 
and  arms,  &.C.,  unlawfully  and  without  reasonable  cause,  did  refuse 
to  furnish  and  supply  the  said  person  to  the  grand  inquest  aforesaid 
unknown,  so  travelling  on  foot  as  aforesaid  and  applying  therefor, 
with  lodging,  victuals,  drink,  entertainment  and  accommodation,  to 
the  great  damage  of  the  person  so  travelling  on  foot  as  aforesaid,  to 
the  public  injury,  and  against,  &c.    [Conclude  as  in  book  1,  chap.  3). 

Against  an  attorney  for  buying  a  note,  on  New  York  stat.  sess.  41,  c.  259, 

That  J.  W.,  on,  &c.,  at,  Sic,  did  buy  a  certain  promissory  note  of 
and  from  one  J.  B.  S.,  the  holder  and  proprietor  of  the  note,  which 
was  made  and  signed  by  one  W.  M.,  and  dated  April  fourteenth,  one 
thousand  eight  hundred  and  twenty-four;  by  which  note  W.  M.  pro- 
mised to  pay  one  A.  V.  A,  the  sum  of  twenty-five  dollars  and  fifty 
cents,  at  the  Bank  of  Lansingburg,  in  ninety  days  from  the  date ; 
that  the  note  was  endorsed  by  said  A.  V.  A.,  whereby  it  became  and 
was  the  property  of  J.  B.  S.,  till  the  purchase  by  the  defendant  for  a 
good  and  valuable  consideration  ;  that  said  .defendant  at  the  time  he 
so  purchased,  was  an  attorney  and  counsellor  of  the  Supreme  Court 
of  Judicature  of  the  State  of  New  York,  and  of  the  Court  of  Common 
Pleas  of  the  County  of  Rensselaer  ;  and  that  he  did  not  then  and  there 
buy  or  receive  the  note  in  payment  for  any  estate  real  or  personal,  or 
for  any  services  actually  rendered,  or  for  any  debt  antecedently  con- 
tracted, or  for  any  purpose  of  remittance,  without  any  intent  to  vio- 
late or  evade  the  act,  &c.,  entitled  "an  act  to  prevent  abuses  in  the 
practice  of  law,  and  to  regulate  costs  in  certain  cases,"  passed  April 
twenty-first,  one  thousand  eight  hundred  and  eighteen ;  to  the  evil, 
&c.,  against,  &c.,  and  against,  etc.  (Conclude  as  in  book  1, 
chap.  3). 

That  said  J,  W.,  on,  &c.,  at,  &c.,  did  buy  of  and  from  one  P.  B., 
and  become  interested  in  buying  of  and  from  P.  B.,  a  certain  other 
promissory  note,  made  and  signed  by  W.  M.,  by  which  W.  M.  pro- 
mised to  pay  to  P.  ]5.  or  bearer  the  sum  of  forty-two  dollars  and  sixty 
cents,  said  J.  W.  at  the  time  he  so  bought  and  purchased  the  last 
mentioned  notes,  being,  and  still  being  an  attorney  and  counsellor  of 
the  Supreme  Court  of  Judicature  of  the  people  of  the  Slate  of  New 
York;  and  the  inquest  further  present,  tliat  said  J.  W.  did  not  then 
and  there  buy  or  receive  the  same  note  in  payment  for  any  estate 

in  this  state  against  licensed  innkeepers,  and  thence  it  became  necessary  to  prove  their 
license. 

(w)  This  form,  as  appears  by  People  v.  Wall)riclge,  6  Cow.  512,  is  in  substance  the 
same  with  the  indiottncnt  sustained  in  that  case.  It  was  there  held,  tiiat  an  iiidiclnu'iit 
a<:;'ainsl  an  attorney,  &lc.,  upon  the  statute  (sess.  41,  c.  ^5!),  s.  1),  for  buvii)tr  a  note,  need 
not  allufrc  that  iie  bou^rlit  the  note  with  intent  to  prosecute,  iStc ,  nor  that  the  note  lias  been 
prosecuted  ;  nor  nei-d  it  show  wlien  it  became  due;,  its  amount,  or  other  circumstances  from 
which  an  intent  to  [trosecute  is  to  be  inferred.  The  act  of  buyinj'',  it  was  said,  is  the 
olfimce,  unless  it  come  within  Iho  proviso  of  the  statute,  which  it  lies  with  the  defendant 
to  show. 


CRUELTY   TO   APPREVTICES.  5'-20 

real  or  personal,  or  for  any  services  actually  rendered,  or  for  any  debt 
before  that  time  contracted,  or  for  any  purpo.se  of  remittance ;  to  the 
evil,  &c,,  and  against,  &c.     [Conclude  us  in  book\,ckap.  3). 

Tliat  said  J.  VV,,  on,  &c.,  at,  &c.,  knowingly,  wilfully  and  corruptly 
became  and  was  interested  in  buying  a  certain  promissory  note  made 
by  one  \\\  M.  for  the  sum  of  one  hundred  and  twenty-five  dollars 
and  fifty  cents,  payable  to  one  A.  V.  A.;  and  also  one  other  promis- 
sory note  made  by  W.  M.  to  one  E.  G.  for  the  sum  of  thirtV-one  dol- 
lars and  twenty  cents;  also  one  other  promissory  note  made  by  W. 
M.,  payable  to  one  C.  F.,  for  a  sum  of  money  to  the  jurors  unknown  ; 
said  J.  W.,  at  the  time  of  the  purchase  of  each  and  every  of  these 
notes,  and  at  the  time  he  became  so  interested  in  the  purchase  thereof, 
being,  and  still  being  an  attorney  and  counsellor  of  the  Supreme 
Court  of  Judicature  of  the  People  of  the  State  of  New  York  ;  and  the 
inquest  atbresaid  do  further  present,  that  he  the  said  J.  W.  did  not 
then  and  there  become  interested  in  the  purchase  of  either  of  these 
notes,  by  w.iy  of  payment  for  any  estate  real  or  personal,  or  for  any 
services  rendered  before  the  purchase  of  these  notes  respectively,  or 
for  any  purpose  of  remittance,  wifhout  any  intent  to  evade  or  violate 
the  act,  &c.,  {as  in  the  first  count). 

Against  a  master  for  neglecting  to  prodide  an  appreyitice  of  tender  years 
with  sufp.cienl  food,  clothing,  bedding  and  oilier  necessaries \x) 

That  one  T.  F.,  late  of,  Sec,  at,  &c.,  did  take  and  receive  one  S.  Q. 
into  the  dwelling  house  of  the  said  T.  F.  as  an  apprentice  of  the  said 
T.  F.,  to  be  by  him  treated,  maintained  and  supported  as  an  appren- 
tice of  him  ihe  said  T,  F.,  and  did  for  a  long  time  have  and  keep  her 
in  the  said  fiouse  as  such  apprentice  as  aforesaid,  and  that  afterwards, 
to  wit,  on.  &c.,  and  on  divers  other  days  and  times,  as  well  before  as 
after  tliaf  day,  and  during  the  said  time  he  so  had  and  kept  her  in  the 
said  hou -e  as  such  apprentice,  the  said  T.  F.  with  force  and  arms 
unlawfully  and  injuriously,  and  without  the  consent  of  the  said  S.  Q. 


(x)  Dickinson's  Q.  S.  6th  ed.  359. 

See  R.  V.  Friend,  cor.  Le  Blanc  J.,  Exeter  Assizes,  1801  ;  ft.  &  R.  20,  cited  by  Lawrence 
J.  in  2  Cam  b.  651.  There  were  two  indictments  for  ill-usag-e  of  two  te(nale  apprentices 
of  tlie  respcc'ive  ajres  of  twelve  and  fourteen.  Tlie  wife  of  Friend  yvas  indicted  witli  him, 
and  tlie  otFem'es  were  charged  against  both  prisoners  "and  each  of  tliem  ;"  the  indentures 
of  apprenticesiii|i  and  assignment  ot'  them  were  given  in  evidence.  Each  apprentice  was 
to  serve  during  ihe  term,  and  the  rpaster  durino-  that  term  was  to  "find,  provide  and  allow 
to  the  said  ap|)r(.  liice  meet,  competent  and  sufficient  meat,  drink,  a|)parel,  lodging,  wash- 
ing and  other  thiigs  necessary  and  fit  for  an  apprentice,  tha,t  she  be  not  any  way  a  charge" 
to  the  party  binding  her,'  "and  to  instructher  in  housewifery."  The  wife  was  acquitted, 
and  the  male  prisoner  convicted  and  imprisoned.  Atler  two  meetings  of  all  the  judges, 
and  some  difference  of  opinion,  the  general  opinion  was  that  it  was  an  indictable  misde- 
meanor to  refuse  or  neglect  to  provide  sufficient  tbod,  bedding,  (Sec,  to  any  infant  of  tender 
years,  whether  child,  apprentice  or  servant,  unable  to  jirovide  for  and  take  cire  of  itself, 
whom  a  map  was  obliged  by  duty  or  contract  to  provide  for,  so  as  thereby  to  injure  its 
health  ;  but  that  the  indictment  was  defective  in  not  slating  the  child  to  be  of  tender  years 
and  unable  to  pr'ivide  tor  itself  However,  as  at  the  trial,  objection  was  taken  not  so  much 
to  the  indictment  itself,  as  to  the  evidence  adduced  in  its  support,  it  was  thought  right  tliat 
the  prisoner  slioild  suflier  his  whole  imprisonment.  See  R.  r.  Meredith  and  Yl.  v.  BooUi, 
R.  &-  R.  47,  cruelty  by  overseers. 
45 


530  OFFENCES  AGAINST  SOCIETY. 

and  against  her  will,  and  maliciously  and  unlawfully  tnt^nding  to 
hurt  and  injure  the  said  S.  Q.,  she  the  said  S.  Q.  being  such  appren- 
tice to  the  said  T.  F.  as  aforesaid,  and  then  and  there  being  an  infant 
of  tender  years,  to  wit,  of  the  age  of  years,  and  under  the  do- 

minion and  control  of  the  said  T.  F.,  and  unable  to  provide  for  her- 
self, did  neglect  and  refuse  to  find  and  provide  for  and  to  give  and 
administer  to  her,  being  so  had  and  kept  as  such  apprentice  as  afore- 
said, sufficient  meat,  drink,  victuals,  wearing  apparel,  bedding  and 
other  necessaries  proper  and  requisite  for  the  sustenance,  support, 
maintenance,  clotliing,  covering  and  resting  the  body  of  the  said  S. 
Q.,  by  means  whereof  she  became  emaciated  and  nearly  starved  to 
death,  and  the  constitution  and  frame  of  her  body  was  greatly  hurt 
and  impaired,  to  the  great  damage,  &c.,  and  against,  &c.  [Conclude 
as  in  book  \,chap.  3). 

Against  a  ini stress,  for  not  providing  svjjicient  food  for  a  servant,  keep- 
ing her  iviihout  proper  warmth,  <^'C.{y) 

That  one  E.  R.,  late  of,  &c.,  the  wife  of  S.  R.,  unlawfully  and  ma- 
liciously contriving  and  intending  to  hurt  and  injure  one  E.W,,  being 
a  servaiit  to  her  the  said  E.  R.,  and  an  infant  of  tender  years,  to  wit, 
of  the  age  of  y6ars,  under  the  dominion  and  control  of  the  said 

E.  R.,  and  unable  to  provide  for  herself,  heretofore,  to  wit,  on,  &c., 
and  on  divers  other  days  and  times  as  well  before  as  after  that  day, 
with  force  and  arms  at,  &c.,  unlawfully,  wilfully  and  maliciously  did 
omit,  neglect  and  refuse  to  provide  for  and  give  and  administer  to 
the  said  E.  VV.  sutficient  meat  and  drink  necessary  for  sustenance, 
support  and  nourishment  of  the  body  of  her  the  said  E.  W.,  and  did 
then  and  there  expose  the  said  E.  W.  to  the  cold  and  inclemency  of 
the  weather, (2^)  as  well  within  as  without  the  house  wherein  the  said 
E.  R.  then  dweU  and  kept  the  said  E.  W.  without  sufficient  warmth 
necessary  for  the  health  of  her  the  said  E.  W.,  to  wit,  at,  &c.  (the  said 
E.  R.  on  the  several  days  and  times,  and  during  all  the  time  afore- 
said, living  separately  and  apart  from  the  said  S.  R.  her  husband,  to 
wit,  at,  &c.),(«)  contrary  to  the  duty  of  her  the  said  E.  R.,  as  the  mis- 

(y)  Dickinson's  Q.  S.  6th  ed.  358. 

Tliis  is  the  indictment  ajQ^ainst  Elizabeth  Ridley,  9  Campb.  650,  but  with  the  addition 
suggested  by  Lawrence  J.  as  necessary  to  sustain  it.  See  3  Chit.  C.  L.  1st  ed.  861,  and 
R.  V.  Friend,  K.  Sl  R.  C.  C.  20.  Unless  the  child  be  of  tender  years,  unable  to  provide  for 
itself,  and  is  under  the  control  of  the  defendant,  so  us  to  be  unable  to  take  any  steps  by 
leaving  the  service,  or  remonstrating  or  complaining  to  a  magistrate,  mere  nonfeasance 
respecting  it  would  be  a  more  brea<;h  of  contract,  and  not  indictable.  See  R.  v.  Ridley 
and  R.  v.  Friend. 

(z)  As  to  Ibis  part  of  the  charge,  sec  Dickinson's  Q.  S.  6th  ed.  314,  320,  S.'iS. 

(«)   VVliore  tbe  olfender  is  a  married  woman,  living  with  her  husband,  it  is  necessary  to 
3tatc  (and  prov(^)  instead  of  the  matter  above  jilaced  within   brackets,  either  that  the  eliild 
was  ini[)ris()i)ed  by  her,  which  is  suiFiciont  to  show  her  duty  to  provide  it  with  food  (Reg. 
V.  Klizabelh  Edwards,  8C.&,  P.  611,  Pattcson  J.).,  or  to  allege  as  follows:  "the  said 
husband  of  the  said  on  the  several  days  and  times,  and  during  all  the  times  afore- 

said having  provided  the  said  wilb  suHicier.t  meat,  drink  and  victuals  necessary  for 

the  maiiilciiaiicc,  support  and  nourishment  of  the  body  of  the  said  ,  and  with  suffi- 

cient firing,  covering,  bedding  und  other  necessaries  proper  and  requisite  for  sustaining, 
supporting,  mi^nitaiiiing,  clothing  and  resting  the  body  of  the  said  and  covering  the 

same  from  the  cold  and  inclemency  of  the  Weather,"  S.  C.-;  for  her  crime  is  the  wilfully 
neglecting  to  deliver  the  food  to  tlie  child  alter  the  husband  Imd  provided  it  (li.  v.  Saun- 


MISCONDUCT   BY  CAPTAIN   OF  VESSEL,  &C.  531 

tress  of  the  said  E.  W.  in  that  behalf,  by  reason  of  all  which  premises 
she  the  said  E.  W.  afterwards,  to  wit,  on,  &c.,  became  and  was,  and 
for  a  long  time,  to  wit,  the  space  of  six  months  then  next  following, 
continued  to  be  very  weak,  sick  and  ill  and  greatly  consumed  and 
emaciated  in  her  body,  to  wit,  at,  &c.,  aforesaid,  to  the  great  damage  of 
the  said  E.  W.,  and  against,  &c.  {Conclude  as  in  book  1,  chap.  3). 

Against  the  captain  of  a  vessel, for  bringing  into  the  port  a  person  with 
an  infectious  disease,  under  the  Pennsylvania  act.(b) 

That  A.  E.,  late  of,  &c.,  on,  &c.,  being  master  and  commander  of 
the  schooner  St.  Andrews,  did  arrive  with  the  said  vessel  from  beyond 
seas,  at  the  port  of  P.,  and  then  and  there  had  on  board  of  the  said 
vessel  a  certain  W.  M.,  then  and  there  disordered  with  a  certain  in- 
fectious disease  called  a  putrid  fever;  and  that  N.  F.,  then  and  still 
being  the  officer  appointed  by  virtue  of  the  act,  entitled  a  "supple- 
ment to  the  act  entitled  an  act  for  imposing  a  duty  on  persons  con- 
victed of  heinous  crimes,  and  to  prevent  poor  and  impotent  persons 
being  imported  into  this  province;"  together  with  J.  H.,  then  and  still 
being  one  of  the  physicians  appointed  by  virtue  of  the  act  of  general 
assembly,  entitled  "an  act  to  prevent  infectious  diseases  from  being 
brought  into  this  province,"  afterwards,  to  wit,  on  the  same  day  and 
year  aforesaid,  and  at  the  county  aforesaid,  did  repair  on  board  the 
same  schooner  or  vessel,  to  inspect  the  same  with  respect  to  the  health 
and  disease  of  the  people  on  board  the  same  vessel,  and  to  do  and 
perform  the  duties  to  their  respective  offices  belonging ;  and  that  he 
the  said  A.  E.,  then  and  there  well  knowing  the  same  VV.  M.  to  be  so 
ds  aforesaid  on  board  his  said  schooner  or  vessel,  and  to  be  disordered 
with  the  infectious  disease  aforesaid,  then  and  there  knowingly  and 
willingly  did  conceal  the  same  from  the  said  officer  and  physician, 
and  then  and  there  did  not  make  a  just  and  true  discovery  of  the 
sickly  and  disordered  state  and  condition  of  the  said  W.  M.  to  the 
said  officer  and  physician,  but  did  neglect  so  to  do,  to  the  great  dam- 
age of  the  health  and  lives  of  the  citizens  of  this  state,  contrary,  &c., 
against,  &c.     (Conclude  as  in  book  1,  chajJ.  3). 

Against  a  captain  of  a  vessel,  for  not  providing  wholesome  meat  for  his 
passengers.{c) 

That  E.  C,  late  of,  &c.,  mariner,  on,  &c.,  being  master  and  com- 
mander of  the  brigantine  Cunningham,  bound  from  Londonderry,  be- 
yond seas,  to  the  port  of  Philadelphia,  and  having  charge  of  the  same, 
on,  &c.,  and  within  the  jurisdiction  of  this  court,  did  import  into  the 
river  Delaware  from  the  port  of  Londonderry  aforesaid,  three  hundred 
and  forty  passengers  and  servants,  and  that  he  the  said  R.  C,  so  being 
master  and  commander  of  the  same  ship,  did  neglect  and  omit  to  pro- 

ders,  7  C.  &  P.  279,  Alderson  B.)     A  mother  would  be  liable,  for  the  consequences  of  not 
pucklinjr  lici-  unweaned  iiiflmt,  if  she  is  able  to  do  so;  though  if  slie  be  married,  her  hus- 
band would  be  bound  to  provide  food  for  another  child.     Sec  per  Patleson  J.,  Reg.  v.  Ed- 
wards;  Dickinson's  Q.  S.  6th  ed.  358,  359, 
(6)  Drawn  by  Mr.  Bradford  in  1790.  (c)  lb. 


532  OFFEXCES  AGAINST  SOCIETY. 

vide  and  supply  tlie  same  passengers  and  servants,  during  the  voyage 
aforesaid,  with  good  and  wholesome  meat,  drink  and  other  necessa- 
ries, and  did  wholly  omit  and  neglect  during  the  said  voyage  to  pro- 
vide and  supply  any  vinegar,  to  wash  and  cleanse  the  said  vessel,  or 
for  the  said  passengers  and  servants  to  use  on  board,  during  the  said 
voyage  from  Londonderry  aforesaid,  and  that  the  said  passengers  and 
servants  were  not  during  the  voyage  aforesaid  provided  and  supplied 
with  good  and  wholesome  meat,  drink  and  other  necessaries,  nor  with 
any  vinegar  for  the  purposes  aforesaid,  and  that  the  said  passengers 
and  servants  then  and  there  were  a  greater  number  than  were  well 
supplied  and  provided  with  the  meats,  drinks,  vinegar  and  necessaries 
aforesaid,  by  reason  wheieof  many  of  the  said  passengers  became  sick 
and  in  great  jeopardy  of  their  lives,  to  the  evil  example,  &c.,  contrary, 
&c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Against  overseers  for  cruelly  to  a  pau'per.{d) 

That  on,  &c.,  one  M.  S.,  a  singleworaan,  was  a  poor,  weak,  im- 
potent and  infirm  person,  wholly  unable  to  maintain  herself,  and 
legally  settled  within  the  township  of  B.,  in  the  W.  R.  of  the  County 
of  Y.,  and  justly  entitled  by  the  laws  and  statutes  of  this  realm  to 
have  reasonable  and  necessary  suppon  and  relief  found  and  provided 
for  her  by  the, overseers  of  the  poor  of  the  said  township,  and  that  J. 
B.,  late  of  B.  aforesaid,  well  knowing  the  premises,  and  having  the 
said  M.  S.  under  his  care,  as  a  poor  person  of  and  belonging  to  the 
said  township,  but  wilfully  and  maliciously  intending  to  injure  and 
oppress  the  said  M.  S.  on  the  day  and  year  aforesaid,  and  continually 
afterwards  until  the  day  of  the  death  of  the  said  M.  S.,  which  hap- 
pened on,  &c.,  at  B.  in  the  said  W.  R.,  his  duty  in  this  behalf  in  no- 
wise regarding,  wilfully,  maliciously  and  unjustly  neglected  and 
refused  to  find  and  provide  for  the  said  M.  S.  reasonable  and  neces- 
sary meat,  drink,  clothing,  bed  and  bedding,  whereby  the  said  M.  S. 
was  reduced  to  a  state  of  extreme  weakness  and  infirmity;  and  after- 
wards, on,  &c.,  at,  &c.,  through  the  want  of  such  reasonable  and 
necessary  meat,  drink,  clothing  and  bed  and  bedding,  died,  to  the 
great  damage,  injury  and  oppression  of  the  said  M.  S.,  and  to  the 
shortening  of  her  life,  to  the  evil  example,  &c,,  and  against,  &c.(e) 
{Conclude  us  in  book  1,  chap.  '3). 

{Add  count  for  common  assault).- 

(d)  Dickinson's  Q.  S.  fith  ed.  .351. 

(e)  Ttiis  was  the  iMdiclnient  in  IJ.  v.  Bootli  (Dick.  Q.S.  3G1).  Tiio  prisoner  was  convict- 
ed and  imprisoned.  However,  in  IHiKi,  six  jndires  vvcto  ofopinion,  tiiat  an  overseer  is  not 
indiclabic  for  the  conscf|uences  of  not  relievinfr  a  jjaupcr,  unless  an  order  of"  justices  for  iiis 
reliel  is  stated  and  proved  (exeejit  in ,  case  olurjrcnt  n<'cessity  wiiere  no  sueli  order  could 
ho  liad  in  time)  :  five  jud^rcs  thought  tlie  overseer  so  indictable,  as  lie  had  taken  tJie  jiaupcr 
iiiidcr  his  care  without  such  order;  R.  v.  Meredith  and  'I'urner,  R.  iV,.  IJ.  dfi.  In  R.  ». 
W'airen  (1820),  R.  &  K.  48  n.,  an  overseer  was  indicted  fiir  ncf;leetin|ij;  to  supply  medical 
;iid  when  ref|nired,  to  a  pauper  labouring  under  a  dangerous  illness;  and  IJolroyd  J.,  held 
the  ofl'ence  sufficiently  charged  and  proved,  though  the  puuper  was  not  in  the  workhouse, 
or  befijrc  his  illness  needed  jiarish  relief. 


REFUSAL  TO  SERVE  AS  JUROR,  OVERSEER,  &C.  533 

Jlgainst  a  juror  for  not  appearing  ichen  summoned  on  a  coroneys  in- 
quesL{f) 

That  on,  &c.,  at,  &c.,  one  A.  B;  died  within  the  Hmits  of  the  borougli 
of  Reading,  in  the  County  of  Berks,  of  a  sudden  and  violent  and  not 
natural  death,  and  that  the  body  of  the  said  A.  B.  then  lay  dead  in  the 
parish  of  St.  G.  witliin  the  limits  of  the  borough  aforesaid,  whereof 
information  had  been  then  and  there  duly  given  to  J.  J.  B.,  Esq.,  who 
then  was  the  coroner  of  the  borough  aforesaid. 

And  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  further  pre- 
sent, that  thereupon  tlie  said  J.  J.  B.,  so  being  such  coroner  aforesaid, 
to  wit,  on  the  said  day  of  in  the  year  aforesaid,  in  the 

parish  of  St.  G.  within  the  limits  of  the  borough  aforesaid,  duly  made 
his  certain  warrant  in  writing  under  his  hand  and  seal,  as  such  coro- 
ner as  aforesaid,  directed  to  the  constables  and  wardens  of  the  said 
borough,  whereby  the  said  coroner  in  her  majesty's  name  charged 
and  commanded  them,  that  on  sight  thereof  they  should  summon  and 
warn  twenty-four  able  and  sutficient  men  of  their  constable-wick  per- 
sonally to  appear  before  him  on  the  said  day  of  at 
o'clock  in  the  at  the  house  known  by  the  sign  of  the  in 
street,  in  the  said  borough,  then  and  there  to  do  and  execute 
all  such  things  as  should  be  given  them  in  charge  on  behalf  of  our 
sovereign  lady  the  queen's  majesty,  touching  the  death  of  the  said  A. 
B.,  and  that  they  should  make  a  return  of  those  whom  they  should  so 
summon. 

And  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  fttrther  pre- 
sent, that  C.  D.,  of  the  parish  of  St.  G.  within  the  borough  aforesaid, 
on  the  said  day  of  in  the  year  aforesaid,  and  long 

before,  was  an  inhabitant  householder  of  the  parisli  of  St.  G.  aforesaid 
within  the  borough  aforesaid,  and  a  person  able  and  sufficient  to  do 
and  execute  all  such  things  as  might  and  shoitid  be  given  to  him  in 
charge,  on  behalf  of  our  said  lady  the  queen,  touching  the  death  of 
the  said  A.  B.,  and  that  he  the  said  C.  D.  then  and  there  was  duly 
summoned  and  warned  personally  to  appear  before  the  said  J.  J.  B., 
so  being  such  coroner  as  aforesaid,  at  the  time  and  place  atoresaid,  to 
do  and  execute  all  such  things  as  there  might  be  given  to  him  in 
charge  touching  the  premises  aforesaid.  Nevertheless  the  said  C.  D., 
wholly  neglecting  his  duty  in  that  behalf,  did  not  nor  would  personally 
appear  before  the  said  J.  J.  B.,  so  being  such  coroner  as  aforesaid,  but 
so  to  do,  and  to  do  his  duty  on  that  behalf,  then  and  there  totally  did 
neglect,  atid  wilfully,  obstinately  and  contemptuously  did  make  de- 
fault, against  the  form  and  effect  of  the  said  warrant  and  summons, 
in  contempt,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count. 

That  the  said  C.  D.,  on  the  said  day  of  in  the  year 

aforesaid,  and  long  before,  was  an  inhabitant  of  and  in  the  parish  of 
St.  G.  aforesaid  within  the  borough  aforesaid, and  that  he  the  said  C. 
I>.  then  and  there  was  duly  sunmioncd  and  warned  personally  to  ap- 

(/)  Dicltinson's  Q.  S.  6th  ed.  4.'?1 ;  see  slat.  4  Ed.  I.,  c.  2;  R.  v.  Jones,  2  Stra.  1145; 
R.  i>.  Lowe,  ib.  820 ;  2  Inst.  225;  Foitescuc  dc  Laudibus,  c.  25. 

45* 


r)3t  ,  OFFKXCES  AGAINST  S<-)GIETY-. 

pear  before  (he  said  J.  J.  B.,  so  being  such  coroner  as  aforesaid,  at 
[the  particular  time  and  place  staled  in  the  laarrunt),  to  do 
and  execute  all  such  things  as  then  and  there  might  be  given  to  him 
in  charge  touching  the  death  of  the  said  A.  B.,  tlien  lying  dead  in  the 
parish  of  St.  G.  aforesaid  within  the  borough  aforesaid,  of  a  violent 
d^ath.  Nevertheless  the  said  C.  D.,  wholly  neglecting  his  duty  in 
that  behalf,  did  not  nor  would  personally  appear  before  the  said  J.  J. 
B.,  so  being  such  coroner  as  aforesaid,  upon  the  occasion  aforesaid; 
but  so  to  do,  and  to  do  his  duty  in  that  behalf,  then  and  there  totally 
did  neglect,  and  wilfully,  obstinately  and  contemptuously  did  make 
default ;  in  contempt,  &c.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

For  refusivgto  serve  the  office  of  overseer  of  the  poo7\{g) 

That  on,  &c.,  at,  &c.,  B.  C,  Esq.,  and  D.  E.,  Esq.,  then  and  yet 
being  two  of  the  justic(;s  of  oui'.said  lady  the  queen,  assigned  to  keep 
the  peace  of  our  said. lady  the  queen  in  the  said  County  of  M.,  and 
also  to  hear  and  determine  divers  felonies,  trespasses  and  other  mis- 
demeanors conmiitted  in  the  same  county  (one  of  them  then  being  of 
the  quorum),  and  both  dwelling  near  the  said  parish  of  A.  in  the 
County  of  M.  aforesaid,  did  under  their  hands  and  seals  nominate  and 
appoiiit  F.  G.,  late  of,  &c.-,  then  being  a  substantial  householder  in  the 
said  parish  of  A,  in  the  county  aforesaid,  to  be  overseer  of  the  poor 
of  the  said  parisli  for  the  year  then  ensuing,  acconling  to  the  form  of 
the  statute  in  such  case  made  and  provided.  And  that  afterwards, 
to  wit,  on,  &c.,  at,  &c.,  he  the  said  F".  G.  had  due  notice  of  the  said 
nomination  and  appointment,  and  was  duly  and  legally  served  there- 
with; yet  he  the  said  F.  G.,  of  the  parish  aforesaid  in  the  county 
aforesaid,  yeoman,  on  the  said  day  of  in  the  year  afore- 

said, and  continually  afterwards  until  the  day  of  the  taking  of  this 
inquisition,  during  all  which  time  he  the  said  F.  G.  was,  and  con- 
tinued, and  yet  is  an  inhabitant  and  householder  within  the  same 
parish  in  the  county  aforesaid,  at,  &c.,  unlawfully,  obstinately  and 
contemptuously  did,  and  yet  dotfi  neglect  and  refuse  .to  take  upon 
himself  the  execution  of  the  said  office  of  overseer  of  the  poor  of  the 
said  parish  of  A.  in  the  said  County  of  M.,  to  which  he  was  so  no- 
minated and  appointed  as  aforesaid,  or  to  intermeddle  or  act  therein; 
against,  &c.,  and  against,  &c.     [Conclude  us  in  book  1,  chap.  3). 

For  refusing  to  execute  the  office  of  constable.{li) 

That  J.  K.,  &c.,  o/,  &c.,  on,.&c.,  pt,  &c.,  and  within  the  jurisdiction 
of  this  court,  to  wit,  at  a  court  of  General  Quarter  Sessions  Records, 
lield  before  M.  B.  and  L.  L.,  &c.,  of  tiie  samecounty,  justices  assigned 
to  keep  the  peace  (the  said  J.  K.  then  and  there  being  an  inhabitant 
and  resident  of  said  township  of  P.),  was  duly  consiiiuled  and  ap- 
])oinled  by  the  said  M.  B.,  &lc.,  to  be  constable  of,  &c.,  ffoni,  &.C.,  for 

{g)  Dickinson's  Q.  S.  6tfi  cd.  430.    As  to  vvliat  constiUitrs  a  lioiisclioldcr  for  tlie  purpose 
of  liability  to  serve  this  office,  sec  R.  v.  Poyudcr,  1  li.  &,  C,  Htf. 
{h)  Drawn  by  William  liradford,  Esq. 


REFUSING   TO  SERVE  AS  CONSTABLE ESCAPE.  535 

the  term  of  one  year  then  next  following,  whereof  the  said  J.  K.,  on, 
&c.,  at,  &c,,  had  notice.  Nevertheless  the  said  J.  K.^  Iiis  duty  in  this 
behalf  not  regarding,  but  intending  the  due  execution  of  justice  as 
much  as  in  him  lay,  to  hinder  and  retard  from,  &c.,  to,  &c.,  at,  6lc., 
the  office  of  constable  of,  &c.,  on  himself  to  tak^  and  execute,  wilfully, 
obstinately  and  contemptuously,  hath  altogether  refused  and  denied, 
to  the  manifest  contenipt  and  hinderance  of  justice,  to  the  evil  ex- 
ample, &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

For  refusing  to  take  the  office  of  chief  constable,  being  duly  elected  at  the 
quarter  session s.{i) 

That  at  the  General  Quarter  Sessions  of  the  Peace  holden  at,  (cap- 
tion of  the  ses.sio)i),  one  A.  B.,  of  the  parish  of  C,  within  the  hundred 
of  0.  in  the  County  of  M.  aforesaid,  yeoman,  then  and  long  before 
being  an  inhabitant,  and  residing  in  the  &aid  parish  of  C.  within  the 
hundred  and  county  aforesaid,  and  an  able  and  proper  person  to  ex- 
ecute the  office  of  chief  constable  within  the  said  hundred,  was  then 
antl  there,  by  the  justices  above  named,  at  the  same  session,  in  due 
manner  elec"ted(jf")  to  be  one  of  the  chief  constables  of  the  hundred 
aforesaid,  in  the  room  and  instead  of  one  C.  D.,  whereof- he  the  said 
A.  B.  afterwards,  to  wit,  on,  &c.,  at,  &c.,  within  the  hundred  and 
county  aforesaid,  had  notice;  and'afterwards,  to  wit,  on,  &c.,  at,  &c.^ 
was  summoned  before  the  said  justices  at,  &c.,  to  be  sworn  into  his 
said  office(A')  of  chief  constable  of  the  said  hundred  of  {/e) ;  never- 

theless the  said  A.  B.  his  duty  in  that  behalf  not  regarding,  but  con- 
triving and  intending  wholly  to  neglect  and  serve  the  said  office  of 
chief  constable,  on,  &c.,  and  continually  afterwards  until  the  day  of 
the  taking  of  this  inquisition,  at  the  parish  aforesaid  within  the  hun- 
dred and  county  aforesaid,  unlawfully,  wilfully,  obstinately  and  con- 
temptuously did  wholly  neglect  and  refuse  to  take  upon  himself  and 
to  execute  the  said  office  of  chief  constable,  within  the  said  hundred 
of  0.  in  the  comity  aforesaid  ;  to  the  great  hinderance  of  public  justice^ 
and  against,  &c.     (Conclude  as  in  hook  1,  chap.  3). 

Against  a  gaoler  for  a  voluntary  escape. (I) 
That  heretofore,  to  wit,  at  the  General  Quarter  Sessions  of  the 

I 

(?)  Dickinson's  Q.  S.  6th  cd.  429. 

(j)  lb.;  see  R.  v.  MacArtliur,  Peake's  C.  N.  P.  ace.  The  spcciaf  circumstances  of  the 
election,  and  of  the  noUce  of  it,  nlll^t  be  set  forth  ;  2  Hawk.  c.  10,  s.  46  ;  Buc.  Abr.  tit.  Con- 
stable  (A);  ante,  lit.  Escap(u<). 

{k)  The  summons  siiould  be  stated  accordinsr  to  fact ;  sec  Prig's  case,  Alayn's  K.  78, 
acted  on  in  Foi  tesc.  Rep.  127.     Dicivinson's  Q.  S.  6th  cd.^430. 

Refusing  to  accept  offices.  The  refusal  to  accept  office,  which  parties  are  liable  to  serve 
and  to  which  they  are  duly  appointed,  is  an  indictable  offence.  Tlius  a  person  duly  chosca 
is  indictable,  for  refusing  to  take  on  himself  the  office  of  constable  of  a  parish  which  he 
inhabits;  R.  v.  Harper,  5  Mod.  96.  Refusing  to  take  the  oath  of  office  is  prima  facie  evi- 
dence of  refusal  to  take  on  himself  the  execution  of  it,  and  that  refusal  need  not  be  stated 
in  tiie  indictment;  R.  v.  Biain,  3  B,  &,  Ad.  614.  Or  the  office  of  overseer  of  the  poor;  R. 
V.  Jones,  2  Sir.  1145;  or  any  other  ministerial  office;  but  notice  of  the  appointment  mu.st 
first  bo  given  him;  and  the  indictment  must  show  tlie  duty  he  lias  violattd,  by  setting  out 
the  mode  in  which  lie  was  appointed,  and  how  he  became  liable  to  serve ;  R.  v.  Harper,  5. 
Mod.  1)6. 

(/)  Arch.C.  P.  ath  Am.  ed.  654. 


5.'^()  OFFE.YCES  AGAINST  SOeiETV. 

Piiace,  holden  at  (so  continuing  the  record  of  the  conviction 

of  the  party  ivho  escaped,  stating  it  however  in  the  past,  and  not  in 
the  present  tense;  then  proceed  thus):  as  by  the  record  thereof  more 
fully  and  at  large  appears;  which  said  judgment  still  remains  in  full 
I'orce  and  effect,  and  not  in  the  least  reversed  or  made  void. 

And  the  jurors  first  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  afterwards,  to  wit,  at  the  said  General  Quarter  Sessions 
of  the  Peace  above  mentioned,  he  the  said  J.  N.  was  then  and  there 
committed  to  the  care  and  custody  of  J.  S.,  he  the  said  J.  S.  then  and 
still  being  keeper  of  the  common  gaol  in  and  for  the  said  County  of 
Berks,  there  to  be  kept  and  imprisoned  in  the  gaol  aforesaid,  accord- 
ing to  and  in  pursuance  of  the  judgment  and  sentence  aforesaid  ;  and 
the  said  J.  S.  the  said  J.  N.  then  and  there  had  in  the  custody  of  him, 
the  said  J.  S,,  for  the  cause  aforesaid,  in  the  gaol  aforesaid. 

And  the  jurors  first  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  J.  S.,  of  the  parish  of  L.  in  the  said  County  of 
Berks,  yeoman,  afterwards,  and  before  the  expiration  of  the  six 
calendar  months  for  which  the  said  J.  N.  was  so  ordered  to  be  im- 
prisoned as  aforesaid,  and  whilst  the  said  J.  N.  was  so  in  the  custody 
of  the  said  J.  S.,  as  such  keeper  of  the  said  common  gaol  as  aforesaid, 
to  wit,  on,  &c.,  at,  &c.,  feloniously,  {if  the  offence  for  which  J.  N.  was 
convicted  was  a  felony),  unlawfully,  voluntarily  and  contemptuously 
did  permit  and  sutfer  the  said  J.  N.  to  escape  and  go  at  large  whither- 
soever he  would  ;  whereby  the  said  J.  N.  did  then  and  there  escape 
out  of  the  said  prison  and  go  at  large  whithersoever  he  would  ;  in 
contempt  of  our  said  lady  the  queen  and  her  laws,  contrary  to  the 
duty  of  the  said  J.  S.,  so  being  keeper  of  the  gaol  aforesaid,  in  manifest 
hinderance  of  justice,  to  the  evil  example,  &c.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

Same  where  the  parly  escaping  was  committed  by  a  judge  as  a  fugitive 
from  justice, {m) 

That  on,  &c.,  A.  V,  P.,  being  one  of  the  judges  of  the  said  com- 
monwealth under  the  constitution  and  laws  thereof,  and  one  of  the 


(ttj)  This  indictment  was  prosecuted  in  Philadelphia,  at  July  T.  1847,  by  Mr.  Champ. 
ncys,  the  attoitiey-gcneral  of  I'eruisylvatiia.     The  (tefeiidant  was  acquitted. 

The  second  coimt,  which  is  V(;i'y  etaborate,  is  as  follows: 

"And  the  iii(|iic.s!i  ulidcsaid,  on  their  oaths  and  afHrmations  aforesaid,  do  further  pressent, 
thai  '1'.  G.  P.  being  irovernor  of  the  State  of  Maryland,  heretofore,  to  wit,  on,  &,c.,  and 
according'  to  the  constitution  and  laws  of  the  United  States,  gave  information  to  his  excel- 
lency F.  R.  S.,  then  and  now  governor  ol"  the  ("ommonwcalth  of  Pennsylvania,  that  a 
certain  I.  B.,  late  of,  &,c.,  in  the  said  States  of  Matyhmd,  stood  charged  upon  the  affidavit 
of  A.  S.  with  the  criine  of  an  assault,  with  intent  to  kill  him  the  said  A.  S. ;  and  the  said 
T.  G.  P.  so  being  governor  of  the  said  State  of  Maryland,  did  at  the  same  time  and  in 
manner  aforesaid,  furtiier  rcfjuest  that  he  tlie  said  F.  \i.  S.,  so  being  governor  of  tiiis  com- 
monwealtli,  would  cause  the  said  I.  f{.  to  be  apijrchended,  secured  and  delivered  up  to  J.  Z. 
as  agent  on  tlie  part  of  the  said  State  of  Maryland,  as  a  fugitive  from  justice,  to  be  re- 
moved ff^r  trial  in  the  said  State  of  Maryland,  having  juiis^dietion  of  his  crime  aforesaid, 
agreeably  If)  the  constitution  of  the  United  States  and  the  provisions  of  an  act  of  congress, 
passed  the  twel'.'th  day  of  February,  seventeen  hnndrcd  and  ninety-three;  and  further  that 
tlie  said  T.  G.  P.,  so  l)eirig  gr,vernor  of  the  said  State  of  Maiylaiul,  on,  &c.,  in  and  by  a 
certain  paper  iubti  uinent  in  writing  and  printing,  under  tiie  hand  of  the  said  T.  G*  P.,  so- 


ESCAPE,  &c.  537 

associate  judges  of  this  honourable  court,  in  due  form  of  law  did 
make  his  warrant  of  commitment  under  his  hand  and  the  seal  of  this 

being  grovernor  as  aforesaid,  and  the  great  seal  of  the  said  State  of  Maryland,  duly  attested 
by  W.  T.  VV.  then  secretary  of  the  said  State  of  Maryland,  did  authorize  and  empower 
tiie  said  J.  Z.  to  take  and  receive  the  said  I.  B.,  a  fugitive  from  justice  as  aforesaid,  and 
convey  him  to  the  State  of  Maryland,  there  to  lie  dealt  with  according  to  law;  and  the 
inquest  aforesaid,  on  their  oaths  and  affirmations  aforesaid,  do  further  present,  that  the 
said  F.  R.  S.,  so  being  governor  of  the  said  commonwealth,  afterwards,  to  wit,  on,  &c., 
issued  a  certain  writ,  warrant  and  mandate,  bearing  date  tlie  day  and  year  last  aforesaid, 
at  Harrisburg  in  this  state,  under  the  hand  of  iiini  the  said  F.  (so  being  governor  aforesaid, 
and  the  great  seal  of  this  connnonweallh,  duly  attested  by  J.  M.,  then  and  now  secretary 
of  the  said  cotnmonweaUli,  directed  to  A,  V.  P.,  Esq.,  an  Associate  Judge  of  the  Court  of 
Common  Pleas  for  the  City  and  County  of  Piiiladeljlhia,  or  to  any  other  judge  or  justice 
of  the  peace  of  this  commonwealth,  reciting  therein  the  information  given  by  the  said  T. 
G.  P.,  governor  as  aforesaid,  to  him  the  said  F.  R.  S.,  governor  as  aforesaid,  and  the  request 
of  hirn  tlie  said  T.G.  P.,  so  being  governor  as  aforesaid,  as  the  same  arc  above  particularly 
set  forth,  in  and  by  which  said  writ,  warrant  and  mandate,  he  the  said  F.  R.  S.,  so  being 
governor  as  aforesaid,  did  authorize  and  require  him  the  said  A.  V.  P.,  so  being  associate 
judge  as  aforesaid,  or  any  other  judge  or  justice  of  the  peace  in  this  commonwealth  as 
aforesaid,  to  issue  a  warrant  in  the  form  of  law,  directed  to  any  constable  or  other  proper 
officer  for  the  apprehendjng  and  securing  the  said  I.  B.,  and  tiiat  wlien  secured,  he  tiie  said 
A.  V,  P.,  so  being  associate  judge  as  aforesaid,  orjiny  other  judge  or  justice  of  the  peace 
of  this  commonwealth,  would  cause  him  the  said  I.  B.  to  be  delivered  up.  to  the  said  J.  Z., 
agent  as.  aforesaid,  to  the  intent  that  he  might  be  removed  from  this  state  into  the  said 
State  of  Maryland,  having  jurisdiction  of  his  crime,  the  said  agent  peaceably  and  lawfully 
behaving.  VVhich  said  wiit,  warrant  and  mandate,  on  the  day  and  year  last  aforesaid,  he 
the  said  F.  R.  S.  then  being  governor  as  aforesaid,  sent  and  transmitted  to  tlie  said  A. 
V.  P.,  so  being  associate  judge  as  afosesaid,  by  wliom  it  was  duly  received,  to  wit,  on,  &c., 
at,  tfec. 

"And  the  inquest  aforesaid,  on  tlieir  oaths  and  affirmations  aforesaid,  do  further  present, 
that  afterwards,  to  wit,  on,  &c.,  at,  &,c.,  the  said  A.  V.  P.  so  being  Associate  Judge  of  the 
Court  of  Common  Pleas  flir  the  city  and  county  aforesaid,  in  pursuance  of  the  command 
in  the  said  writ,  warrant  and  mandate  of  the  said  F.  R.  S.,  governor  as  aforesaid,  issued 
his  warrant  for  the  arrest  of  the  said  I.  B.,  bearing  date  the  day  and  year  last  afpresaid, 
at,  &,c.,  under  the  hand  and  seal  of  him  the  said  A.  V.  P.,  so  being  associate  judge  as  afore- 
said, directed  to  J.  H.  B.,  then  and  there  being  one  of  the  officers  of  the  police  of  Philadel- 
phia, acting  under  the  authority  of  the  mayor  of  the  said  city;  and  the  said  J.  Z.  so  being 
agent  of  tlie  said  State  of  iNIaryland  for  the  purposes  aforesaid ;  which  said  warrant  is  in 
these  words  and  figures,  to  wit : 

"'City  and -County  of  Philadelpliia,  ss. 

"  '  Tlie  Commonwealth  of  Pennsylvania, 

"  '  To  J.  H.  B.,  or  J.  Z.,    Greeting : 

"'Wliereas  his  excellency  F.  R.  S.,  Governor  of  the  (commonwealth,  has  issued  his  war- 
rant to  inc  the  subscriber,  one  of  the  Judges  of  tlie  Court  of  Common  Pleas  of  the  said 
county,  setting  fortii  that  a  certain  I.  B.,  late  of,  &,c.,  in  the  State  of  Maryland,  stands 
charged  upon  the  affidavit  of  A.  S.  with  the  crime  of  an  assault  with  intent  to  kill  him, 
and  that  said  I.  B.  is  a  fugitive  from  justice,  and  authorizing  and  requiring  me  to  issue  a 
warrant  in  due  form  of  law,  directqd  to  any  constable  or  other  proper  officer,  to  apprehend 
and  secure  the  said  I.  B.,  and  when  so  secured  to  cause  him  to  be  delivered  to  J.  Z.,  agent 
from  the  State  of  Maryland.  These  are  therefore  to  command  you  the  said  B.  and  Z.,  or 
cither  of  you,  to  take"  the  said  1.  B.  and  bring  him  forthwith  before  the  subscriber,  to 
answer  said  charge  and  to  be  further  dealt  with  according  to  law. 

"'  Witness  my  hand  and  seal  at,  <fcc.,  on,  itc  A.  V.  P.' 

"  By  virtue  of  which  said  warrant,  they  the  said  J.  H.  B.  and  J.  Z.,  acting  as  aforesaid, 
arrested  and  secured  the  said  I.  B.  named  in  the  information  of  the  said  Governor  of  the 
State  of  Maryland  and  the  writ,  warrant  and  mandate  of  the  said  Governor  of  Pennsylva- 
nia, in  the  charge  aforesaid,  and  held  and  detained  him  the  said  I.  B.  in  the  charge  and 
keeping  of  the  said  J.  H.  B.  and  J.  Z,,  acting  as  aforesaid  ;  and  the  said  1.  B.  being  so  held 
and  detained,  presented  his  petition  over  the  mark  of  him  the  said  1.  B.  to  the  said  A.  V.  P., 
so. being  associate  judge  as  aforesaid,  setting  forth  that  the  said  I.  B.  was  illegally  deprived 
of  his  liberty,  and  praying  that  he  the  said  A.  V.  P.,  so  being  associate  judge  as  aforesaid, 
would  giant  him  the  said  I.  B.  a  writ  of  habeas  corpus  to  relieve  the  said  I.  B.  from  the 
said  detention  and  restraint.  Whereupon  the  said  A.  V.  P.,  .so  being  associate  judsfc  as 
aforesaid,  on  the  day  and  year  lust  aforesaid,  at  tiic  county  aforesaid,  allowed  the  said  w  rit 


538  OFFENCES  AGAINST  SOCIETY. 

honourable  court,  to  wit,  at,  &c.,  bearing  date  the  day  and  year  afore- 
said, which  said  warrant  of  coninriitnient  was  dehvered  to  A.  F.,  then 
beiny:  the  keeper  and  superintendent  of  the  prison  for  the  said  City 
and  County  of  Philadelphia,  in  and  by  which  said  warrant  he  the 
said  A.  V.  P.,  so  being  judge  and  justice  as  aforesaid,  certified  that 
on  the  day  and  year  aforesaid  one  I.  B.  was  committed  to  the  said 
prison  for  a  further  hearing,  to  answer  the  charge  of  being  a  fugitive 
from  justice  from  the  State  of  Maryland,  until,  &c, ;.  and  he  the  said 
I.  B.  to  stand  committed  until  judgment  be  fully  complied  with,  as  by 
the  said  warrant  more  fully  appears.     By  virtue  of  which  said  war- 

of  habeas  corpus,  which  said  writ  of  habeas  corpus  did  thereupon  issue,  to  wit,  on,  &c.,  at, 
&c.,  out  of  the  said  Court  of  Common  Pleas,  duly  signed  and  sealed  with  the  seal  of  the 
said  court,  directed  to  J.  H.  B.,  commanding  him  the  said  J.  H.  B.,  that  the  body  of  him 
tlie  said  I.  B.  under  his  the  said  J.  H.  B.'s  custody  detained,  by  whatsoever  name  the  said 
I.  B.  migiit  be  detained,  togetlier  with  tlie  day  and  cause  of  his  being  taken  and  detained, 
he  the  said  J.  H.  B.  have  before  him  the  said  A.  V.  P.,  so  being  an  associate  judge  of  the 
said  court,  forthwith  in  the  rooni  of  the  said  court  in  the  said  city  immediately,  then  and 
there  to  do,  submit  and  receive  whatsoever  he  tlie  said  A.  V.  P.,  so  being  associate  judge 
as  aforesaid,  should  then  and  there  consider  in  that  behalf  In  obedience  of  the  command 
of  which  said  writ  of  habeas  corpus,  he  the  said  J.  H.  B.  did  then  and  there  bring  imme- 
diately the  body  of  the  said  I.  B.  before  the  said  judge  at  the  place  named  as  aforesaid, 
with  a  return  of  thp  cause  of  the  detainer  of  the  said  I.  B.  written  and  endorsed  on  the 
back  of  the  said  writ  of  habeas  corpus,  over  the  signature  of  him  tlie  said  J.  H.  B.,  in  the 
words  following,  to  wit: 

"'The  within  named  I.  B.  is  detained  by  virtue  of  a  requisition  of  his  excellency  Gov- 
ernor T.  G.  P.  of  Maryland  on  the  Governor  of  Pennsylvania,  who  issued  his  warrant  for 
the  arrest  of  the  said  I.  B.  as  a  fugitive  from  justice  from  the  State  of  Maryland,  charged 
with  an  assault  and  battery  with  intent  to  kill. 

'"J.  H.  B.  2d  Lt.  of  Police. 
"  '  Pliiladelphia,  &c.  '  "  '  To  Judge  P.' 

"  Wiiereupon  the  said  A.  V.  P.,  so  being  associate  judge  as  aforesaid,  on,  &c.,  at,  &c., 
heard  and  examined  the  said  charges  and  the  comjilaint  of  the  said  I.  B.,  and  afterwards, 
to  wit,  on,  &c.,  at,  &c.,  committed  the  said  I.  B.  to  the  prison  for  the  said  City  and  Cbutity 
of  Philadelphia  for  a  further  hearing  before  him  the  said  A.  V.  P.,  so  being  an  associate 
judge  as  aforesaid,  to  answer  the  said  charges  before  him  the  said  A.  V.  P.,  so  being  an 
associate  judge  as  aforesaid,  on,  &c.,  in  the  Quarter  Sessions  court-room,  and  did  then 
and  there,  to  wit,  on,  &c.,  make  out  his  warrant  of  commitment  in  due  form  of  law,  under 
the  hand  of  him  the  said  A.  V.  P.,  so  being  associate  judge  as  aforesaid,  and  the  seal  of 
the  Court  of  Quarter  Sessions  of  the  Peace  for  the  City  and  County  of  Philadelphia,  of 
which  said  court  he  the  said  A.  V.  P.  was  then  and  there  likewise  an  associate  judge,  to 
wit,  at  the  county  aforesaid,  bearing  date  the  day  and  year  last  aforesaid ;  which  said  war- 
rant of  commitment  was  delivered  to  A.  F.,  then  being  the  keeper  and  superintendent  of 
tlie  prison  for  the  said  City  and  County  of  Philadelphia,  in  and  by  which  said  v/arrant  he 
the  said  A.  V.  P.,  so  being  judge  and  justice  as  aforesaid,  certified  that  on  the  day  and  year 
aforesaid  the  said  I.  B.  was  committed  to  the  said  |)rison  for  a  further  hearing  to  answer 
the  charge  of  being  a  fugitive  from  justice  from  the  State  of  Maryland,  until,  &c.,  to  wit, 
&.C.,  in  the  room  of  the  said  court;  and  he  the  said  I.  to  stand  committed  until  judg- 
ment be  fully  com|)Iied  with  as  by  the  said  warrant  more  fully  appears.  By  virtue  of 
wliich  said  warrant  of  commitment,  afterwards,  to  wit,  on,  &,c.,  aforesaid,  at  the  county 
aforesaid,  A.  F.  being  the  keep<;r  and  superititendent  of  tlie  said  prison  for  the  said  city 
and  county,  did  rc^ceive  the  said  I.  B.  into  his  custody  in  the  said  prison  for  the  said  city 
and  county,  situate  in  the  said  county,  and  did  also  take  and  receive  the  said  warrant  of 
commitment.  And  the  in<|ucst  aforesaid,  on  their  oaths  and  affirmations  aforesaid,  do 
further  present,  that  the  said  A.  F,  late  of  the  said  county,  yeoman,  so  being  keeper  of 
the  said  prison  for  the  said  city  and  county,  and  having  the  said  I.  B.  in  h'vs  custody  in  the 
said  prison  on  that  occasion,  afterwards,  to  wit,  on,  &,c.,  at  the  county  aforesaid  and  within 
the  jurisdiction  of  this  court,  unlawfully  and  negligently  did  permit  and  suffer  the  said 
I.  B.,  HO  being  a  prisoner  committed  to  the  said  prison  as  aforesaid,  to  escape  ami  go  at 
large  from  and  out  of  tlic  custody  of  him  the  said  A.  F.  out  of  the  said  prison,  wheieso- 
ever  he  would,  whereby  the  said  I.  H.  did  Iheu  and  there  escape  out  of  the  said  prison, 
and  go  at  large  whithersoever  he  would,  to  the  great  hinderance  and  obstruction  of  justice, 
m  contempt,  &c.,  to  tlic  evil  example,  &c.,  and  against,  &c. 


ESCAPE,  &:c.  539 

rant  of  commitment,  afterwards,  to  wit,  on,  &c.,  A.  F.  then  being  tlie 
keef)€f  and  superintendent  of  the  said  prison  for  the  said  city  and 
county,  did  receive  the  said  I.  B.  into  his  custody  in  ihe  said  prison 
for  th<3  said  city  and  county,  situate  in  the  said  county,  and  did  also 
lake  and  receive  the  said  warrant  of  commitment. 

And  the  inquest  aforesaid,  on  their  oaths  and  affirmations  aforesaid, 
do  further  present,  that  tiie  said  A.  F.,  late  of,  &c.,  so  being  keeper 
of  the  said  prison  for  the  said  city  and  county,  and  having  the  said 
I.  B.  in  his  custody  in  the  said  prison  on  that  occasion,  afterwards, 
to  wit,  on,  &c,,  at,  &c.,  and  within  the  jurisdiction  of  this  court,  un- 
lawfully, voluntarily  and  contemptuously  did  permit  and  suffer  the 
said  I.  B.,  (so  being  a  prisoner  committed  to  the  said  prison  as  afore- 
said), to  escape  and  go  at  large  from  and  out  of  the  custody  of  him 
the  said  A.  F.,  out  of  the  said  prison,  wheresoever  he  would,  whereby 
the  said  I.  B.  did  then  and  there  escape  out  of  the  said  prison  and  go 
at  large  whithersoever  he  would,  to  the  great  hinderance  and  obstruc- 
tion of  justice,  in  contempt  of  the  laws  of  this  commonwealth,  to  the 
evil  example,  &c.,  and  against,  &c.    {Conclude  us  in  book  1,  chap.  3)» 

Against  a  constable  for  a  negligent  escape.{n) 

That  on,  &c.,  at,  &c.,  *  J.  S.,  then  being  one  of  the  constables  of 
the  said  parish,  brought  one  J.  N.  before  A.  C,  Esq.,  then  and  yet 
being  one  of  the  justices  of  our  said  lady  the  queen,  assigned  to  keep 
the  peace  for  our  said  lady  the  queen  in  and  for  the  county  aforesaid, 
and  also  to  hear  and  determine  divers  felonies,  trespasses  and  other 
misdeeds  committed  in  the  said  county ;  and  the  said  J,  N.  then  and 
there  was  charged  before  the  said  A.  C.  by  one  C.  H.,  spinster,  upon 
the  oath  of  the  said  C.  H.  that  he  the  said  J.  N.  had  then  lately  be- 
fore violently,  and  against  her  will  feloniously  ravished  and  carnally 
known  her  the  said  C.  H. ;  and  the  said  J.  N.  was  then  and  there 
examined  before  the  said  A.  C,  the  justice  aforesaid,  touching  the 
said  offence  so  to  him  charged  as  aforesaid;  upon  which  the  said  A. 
C,  the  justice  aforesaid,  did  then  and  there  make  a  certain  warrant 
under  his  hand  and  seal,  in  due  form  of  law,  bearing  date  the  said, 
&c.,  directed  to  the  keeper  of  Newgate  or  his  deputy,  commanding 
him  the  said  keeper  or  his  deputy  that  he  should  receive  into  his 
custody  the  said  J.  N.,  brought  before  him  and  charged  upon  the 
oath  of  the  said  C.  H.  with  the  {)remises  above  specified  ;  and  the 
said  justice  by  the  said  warrant  did  command  the  said  keeper  of 
Newgate  or  his  deputy  to  safely  keep  him  the  said  J.  N.  there  until 
he  by  due  course  of  law  should  be  discharged ;  which  said  warrant, 
afterwards,  to  wit,  on,  &c.,  at,  &c.,  was  delivered  to  the  said  J.  S., 
then  being  one  of  the  constables  of  the  said  parish  as  aforesaid,  and 
then  and  there  having  the  said  J.  N.  in  his  custody  for  the  cause  afore- 
said ;  and  the  said  J.  S.  was  then  and  there  commanded  by  'he  said 
A.  C.  to  the  justice  aforesaid,  to  convey  the  said  J.  N.  without  delay 
to  the  said  gaol  of  Newgate,  and  to  deliver  him  the  said  J.  N.  to  the 
keeper  of  the  said  gaol  or  his  deputy,  together  with  the  warrant 

(■n)  ATch.  C.  P.  5th  Am.  ed.  652. 


540  OFFEVCES  AGAIXST  SOCIETY. 

afaresaid.  *  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  J.  S,,  late,  &c.,  balcer,  afterwards,  to  wit, 
on,  &c,,  then  being  one  of  the  constables  of  the  said  parish  as  afore- 
said, and  then  having  the  said  J.  N.  in  his  custody  for  the  cause  afore- 
said, at,  &c,,  tlie  said-J.  N.  out  of  the  custody  of  him  the  said  J.  S. 
unlawfully  and  negligently  did  permit  to  escape  and  go  at  large 
whithersoever  he  would,  whereby  the  said  J.  N.  did'  then  and  there 
escape  and  go  at  large  whithersoever  he  would,  to  the  great  hinder- 
ance  of  justice,  to  the  evil  example,  &c.,  and  against,  &c.  {Conclude 
as  i?i  book  1,  chap.  3). 

Jlgainst  a  prisoner  for  escape  out  of  custody  of  constahle.{o) 

[State  the  charge  before  the  magistrate,  the  ivarrant  of  commit- 
ment and  the  defendunV s  being  in  the  custody  of  J.  S.,  as  in  the 
last  precedent,  to  the  %  and  then  proceed  thus) :  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that  the  said 
J.  N.,  .late,  &c.,  labourer,  so  being  in  the  custody  of  the  said  J.  S., 
under  and  by  virtue  of  the  warrant  aforesaid,  afterwards  and  whilst 
he  continued  in  such  custody,  and  before  he  was  delivered  by  the 
said  J.  S.  to  the  said  keeper  of  Newgate  or  his  deputy,  to  wit,  on, 
&c.,  at,  &c.,  in  the  county  aforesaid,''out  of  the  custody  of  the  said 
J,  S.  unlawfully  did  escape  and  go  at  large  whithersoever  he  would, 
to  the  great  hinderance  of  justice,  to  the  evil  example,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

For  ivflictiiig  cruel  and  miusual  jjunishment  on  one  of  the  crew  of  a 
vessel,  4*c- 

That  A.  B.,  late  of,  &c.,  heretofore,  to  wit,  on,  &c.,  with  force  and 
arms  on  the  high  seas  {or  otherwise),  out  of  the  jurisdiction  of  any 
particular  state  of  the  said  United  States  of  America,  on  waters 
within  tlie  admiralty  and  maritime  jurisdiction  of  the  said  United 
States,  and  within  the  jurisdiction  of  this  court,  in  and  on  board  of  a 
certain  American  vessel,  being  a  called  the  in  and  upon 

one  then  and  there  being  one  of  the  crew  of  said  vessel,  did 

then  and  there  make  an  assault,  and  froni  malice,  hatred  and  revenge, 
and  without  any  justifiable  cause,  then  and  there  did  inflict  upon  the 
said  cruel  and  unusual  punishment,  he  the  said  [the  offender), 

then  and  there  being,  {state  whether  the  master,  officer  or  one  of  the 
crew),  of  the  said  American  vessel,  being  a  called  the  to 

the  great  damage  of  the  said  against,  &,c.     {Conclude  as  in 

book  1,  chap.  3). 

Second  count. 

[Same  as  first,  substituting):  "did  then  and  there  make  an  as- 
sault, and  from  malice,  hatred  and  revenge  and  without  any  justifi- 
able cause,  then  and  there  did  beat  and  wound,  [or  us  the  case  may 
be),  the  said  he  the  said,"  &c.,  for  "did  then  and  there  make 

an  assault,  and  from  malice,  hatred  and  revenge  and  without  any 

(0)  Arch.  C.  p.,  5th  Am.  eil.  C53. 


CRUELTY   TOWARD  SEAMEN.  541 

justifiable  cause,  then  and  there  did  inflict  upon  the  said  cruel 

and  unusual  punishment,  he  the  said,"  &c. 

Third  count. 

That  A.  B.,  late  of,  &,c.,  heretofore,  to  wit,  on,  &.c,,  with  force 
and  arms  on  the  high  seas,  out  of  the  jurisdiction  of  any  par- 
ticular state  of  the  United  States  of  America,  on  waters  within  the 
admiralty  and  maritime  jurisdiction  of  the  said  United  States,  and 
within  the  jurisdiction  of  this  court,  in  and  on  board  of  a  certain 
American  vessel,  being  a  called  the  in  and  upon  one 

then  and  there  being  one  of  the  crew,  (or  otherwise),  of  tlie 
said  American  vessel,  being  a  called  the  in  and  upon  one 

then  and  there  being  of  the  said  called  the 

did  then  and  there  make  an  assault,  and  from  malice,  hatred  and 
reveng-e,  and  without  jus\ifiable  cause,  then  and  there  did  beat, 
wound  and  imprison,  (or  as  the  case  may  be),  the  said  and 

upon  the  said  then  and  there  being  of  the  said  vessel, 

being  a  called  the  then  and  there  did  inflict  cruel  and 

unusual  punishment ;  he  the  said  then  and  there  being 

of  the  said  American  vessel,  being  a  called  the  ;  to  the 

great  damage  of  the  said  against,  &c.,  and  against,  &c.     {Con- 

clude as  in  book  1,  chap.  3). 

{For final  count,  seep.  17,  97  n,  123  n). 

Against  same  for  same,  the  punishment  being  beating  and  wounding, 
<Src.{p) 

That  W.  H.  G.  of,  &c.,  in  said  district,  master  mariner,  on,  &c.,  on 
the  high  seas,  within  the  admiralty  and  maritime  jurisdiction  of  the 
said  United  States,  in  and  on,  to  and  of  the  "  Richard  Mitchell,"  the 
same  then  and  there  being  an  American  ship  or  vessel,  and  belonging 
to  certain  persons  citizens  of  the  said  United  States,  whose  names  are 
to  the  jurors,  aforesaid  as  yet  unknown,  with  force  aM  arms  an 
assault  did  malve  in  and  upon  one  J.  P.  C. ;  and  him  the  s^  CTTheu 
and  there  from  malice,  hatred  and  revenge,  and  without  justifiable 
cause,  did  beat  and  wound,  he  the  said  C.  then  and  there  being  one 
of  the  crew  of  said  ship  or  vessel,  and  he  the  said  G.  then  and  there 
being  the  master  thereof,  against,  &c.  {Conclude  as  in  book  1, 
chap.  3).  ^ 

Second  count.  Specifying  the  prinishment  more  jninidely.  ^ 
That  VV.  H.  G.  of,  &c.,  in  said  district,  master  mariner,  on,  ©p.,  on 
the  high  seas,  within  the  admiralty  and  maritime  jurisdiction  of  the 
said  United  States,  in  and  on  board  of  the  "  Richalxi  Mitchell,"  the 
same  then  and  there  being  an  American  ship  or  vessel,  and  belonging 
to  certain  persons  citizens  of  the  said  United  States,  whose  names  are 
to  the  jurors  aforesaid  as  yet  unknown,  with  force  and  arms  another 
assault  did  make  in  and  upon  the  said  J.  P.  C,  and  then  and  there  from 
malice,  hatred  and  revenge  and  without  justifiable  cause,  did  strip 
and  expose  naked  down  to  the  middle  the  person  of  him  the  said  C, 
and  did  then  and  there  inflict  on  the  naked  back  of  him  the  said  C. 

(p)  This  form  was  sustained  in  Massachusetts  af\(;r  a  convictiom 
46 


542  OFFENCES  AGAINST  SOCIETY. 

seventeen  lashes  with  a  certain  instrument  called  "the  cats,"  and 
then  and  there  after  the  infliction  of  said  lashes  as  aforesaid,  did  pour 
a  quantity  of  salt  brine  upon  the  said  naked  back  of  him  the  said  C. ; 
which  said  stripping  and  exposing  naked  the  person  of  him  the  said 
C.  as  aforesaid,  and  said  inflicting  of  said  lashes  as  aforesaid,  and 
which  said  pouring  of  salt  brine  as  aforesaid  upon  the  naked  back  of 
said  C,  were  a  cruel  and  unusual  punishment,  against,  &c,  {Con- 
clude as  ill  book  1,  chap.  3). 

{For  final  count,  see  p.  17,  97  n,  123  n). 

Confining  a  hoy  in  run  of  a  ship,  ^'C. 

That  A.  B.  of,  &c.,  in  the  district  of  M.,  master  mariner,  in 
on  the  high  seas,  within  the  admiralty  and  maritime  jurisdic- 
tion of  the  United  States,  and  on  board  of  the  same  then  and 
there  being  an  American  ship  or  vessel  of  the  United  States,  with 
force  and  arms  an  assault  did  make  in  and  upon  one  and  him 
the  said  then  and  there  from  malice,  hatred  and  revenge,  and 
witliout  justifiable  cause,  did  imprison  in  tlie  run  of  said  ship  or  ves- 
sel, and  detain  there  so  imprisoned  for  a  long  space  of  time,  to  wit, 
from  the  said  to  the  day  of  then  next  ensuing ;  he  the 
said  then  and  there  being  the  master  of  said  vessel,  and  he 
the  said  then  and  there  being  one  of  the  crew  thereof,  against, 
&c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count.     Refusing  suitable  food. 

That  A,  B.  of,  &c.,  in  the  district  of  M.,  master  mariner,  on 
and  from  that  day  to  then  next  ensuing,  on  the  high  seas, 

within  the  admiralty  and  maritime  jiu'isdiction  of  the  United  States, 
in  and  on  board  of  the  the  same  then  and  there  being  an  American 

ship  or  vessel  of  the  United  States,  with  force  and  arms  did  withhold, 
from  malice,  hatred  and  revenge  and  without  justifiable  cause,  suit- 
able food  and  nom'ishment  from  one  he  the  said  then 
and  tliere  being  the  master  of  said  ship  or  vessel,  and  he  the  said 
then  and  there  being  one  of  the  crew  thereof,  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

{Forfimil  count,  see  p.  17,  97  n,  123  n). 

Another  form  for  withholding  suitable  food,  ^c. 

That  W.  L.  C.  of  in  said  district,  master  mariner,  on 

and  from,  that  day  until  then  next  following,  on  the  high  seas, 

within  the  admiralty  and  maritime  jurisdiction  of  the  said  United 
Slates,  and  out  of  the  jurisdiction  of  any  particular  state  thereof,  in 
and  on  board  the  ship  Farewell,  tlie  same  then  and  tliere  being  an 
American  ship  or  vessel  belonging  to  certain  persons  citizens  of  the 
said  United  Stales,  whose  names  are  to  the  jurors  aforesaid  as  yet 
unknown,  with  force  and  arms,  from  malice,  hatred  and  revenge  and 
without  justifiable  cause,  did  withhold  suitable  food  and  nourishment 
from  G.  W.  and  (eleven  others),  they  the  said  W.  (et  al.)  then  and 
there  being  tlie  crew  of  said  ship  or  vessel,  and  he  the  said  L.  C. 
then  and  there  being  master  thereof,  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

{For  final  count,  see  p.  17,  97  n,  123  n). 


CRUELTY  TOWARD  SRAMEiV.  543 

For  for  civ  g,  <5*c.,  a  seainan  ashore  in  a  foreign  port. 

That  A.  B.,  late  of,  &c.,  mariner,  heretofore,  on,  &c,,  at,  {specif/ 
definitely  the  particular  name  of  the  place  and  country  where  the 
sea7nan  was  left),  did  during  his  being  abroad,  maUciously  and  witli- 
out  justifiable  cause,  force  on  shore  at,  {as  before  mentioned),  afore- 
said, one  he  the  said  then  and  there  being  a  mariner, 
and  belonging  to  the  company  of  a  certain  American  vessel,  being  a 
called  the  belonging  in  whole  or  in  part  to  a  certain 
person  or  persons  whose  name  or  names  are  to  the  said  jurors  un- 
known, then  and  still  being  a  citizen  or  citizens  of  the  said  United 
States  of  America,  of  which  said  vessel  he  the  said  '  was  then 
and  there  the  master  and  commander,  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

Second  count.     Same  in  another  form. 

That  the  said  A.  B.,  heretofore,  to  wit,  on,  &c.,  at,  &c.,  he  the  said 
then  and  there  being  the  master  and  commander  of  a  certain 
American  vessel,  being  a  called  the  belonging  in  whole 

or  in  part  to  a  certain  person  or  persons  whose  name  or  names  are  to 
the  said  jurors  unknown,  then  and  still  being  a  citizen  or  citizens  of 
the  said  United  States,  did  during  his  being  abroad  maliciously  and 
without  justifiable  cause,  force  on  shore  at,  {as  above  mentioned), 
aforesaid,  one  he  the  said  then  and  there  being  a  mariner 

of  the  said  vessel,  being  a  called  the  contrary,  &c.    {Con- 

clude as  in  book  1,  chap.  3). 

Third  count.     Leaving  behind  seaman. 

{Like  second  count,  except  instead  o/"):"  force  on  shore  at,  {as 
above  mentioned),  aforesaid,"  insert  "  leave  behind  at  a  foreign 
port  (or  place),  to  wit,  the  said,"  {as  is  mentioned  in  preceding 
counts). 

{For  final  count,  see  p.  17,  97  n,  123  n). 

Leaving  seaman  in  foreign  port.{pp) 

That  B.  C.  S.,  late  of,  &c.,  master  mariner,  on,  &c.,  at  a  foreign 
port  or  place  called  Valparaiso,  in  South  America,  then  and  there 
being  the  master  and  commander  of  the  "  Henry  Clay,"  the  same 
then  and  there  being  a  ship  or  vessel  of  the  United  States,  and  be- 
longing iii  whole  or  in  part  to  certain  persons  citizens  of  the  United 
States,  whose  names  are  to  the  jurors  aforesaid  as  yet  unknown, 
during  her  being  abroad  at  said  foreign  port  or  place  called  Valpa- 
raiso, maliciously  and  without  justifiable  cause,  did  leave  behind  in 
said  foreign  port  or  place  called  Valparaiso,  one  J.  S.,  he  the  said  J. 
S.,  then  and  there  being  a  mariner  of  said  vessel,  against,  &ic.  {Con- 
clude as  in  book  1,  chap.  3). 

Refusing  to  bring  home  a  seaman. 

That  B.  C.  S.,  late,  &:c,,  master  mariner,  on,  &c.,  at  a  foreign  port 
or  place  called  Valparaiso,  in  South  America,  then  and  there  being 
the  master  and  commander  of  the  "  Henry  Clay,"  the  same  then  and 

{pp)  Drawn  and  sustained  in  Boston. 


544  OFFENCES  AGAINST  SOCIETY.      ■ 

there  being  a  ship  or  vessel  of  the  United  States,  and  belonging  in 
whole  or  in  part  to  certain  persons  citizens  of  the  United  States, 
whose  names  are  to  the  jurors  aforesaid  as  yet  unknown,  during  his 
being  abroad  at  the  said  foreign  port  or  place  called  Valparaiso,  mali- 
ciously and  without  justifiable  cause  did  refuse  to  bring  home  again 
from  said  foreign  port  or  place  called  Valparaiso,  one  J.  S.,  he  the 
said  J.  S,  then  and  there  being  a  mariner  of  said  ship  or  vessel,  B. 
C.  S.  carried  out  with  him  IVom  the  said  United  States  in  said  ship  or 
vessel,  and  then  and  there  being  in  a  condition  to  return,  and  willing 
to  return  when  said  B.  C.  S.  was  ready  to  proceed  on  his  homeward 
voyage  from  said  foreign  port  or  place,  against,  &c.  {Conclude  as 
in  book  1,  chap.  3). 

{For  final  count,  see  p.  17,  97  n,  123  n)» 

Another  form  for  same.{q) 

That  heretofore,  to  wit,  on,  &c.,  one  J.  C.  T.,  then  being  the  master 
of  a  ship,  to  wit,  the  ship  Washington,  (hen  and  there  belonging  to 
a  citizen  and  citizens  of  the  United  States,  during  his  the  said  T.  being 
abroad,  to  wit,  at  a  foreign  port,  Calcutta,  being  a  port  within  the 
dominions  of  his  Britannic  majesty  and  within  the  jurisdiction  of  this 
court,  to  wit,  at  the  district  aforesaid,  did  maliciously  and  without 
justifiable  cause  force  W.  S.  B.,  then  and  there  being  an  officer  of  the 
said  ship,  to  wit,  chief-mate  of  the  said  ship  Washington,  on  shore 
in  the  said  foreign  port  of  Calcutta,  to  wit,  at  the  district  aforesaid, 
contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

{for final  count,  see  p.  17,  97  n,  123  n). 


CHAPTER  VII. 


LIBEL. 


General  frame  of  indictmenU 


That  A.  B.,  of,  &c.,  unlawfully  ancl  maliciously  contriving  and 
intending  to  vilify  and  defame  one  C.  D.,  and  to  bring  him  into  pub- 
lic scandal  and  disgrace,  and  to  injure  and  aggrieve  him  the  said  C. 
D.,  on,  &.C.,  at,  &c.,  unlawfully  and  maliciously  did  compose  and 

(7)  United  States  v.  Taylor,  Phil.  Oct.  Scss.  1H37.  The  defendant  was  acquitted.  The 
indictment  was  framed  by  Mr.  John  M.  Read,  tiicn  district  attorney. 


LIBEL.  545 

publish(«)  and  cause  and  procure(ar/)  to  be  composed  and  published, 
a  certain  false,  scandalous,  malicious  and  defamatory  libel  of  and  con- 
cerning him(6),  tlie  said  C.  D.,  containing  therein  amojig  other  things, 
the  false,  malicious,  defamatory  and  libellous  words  and  matters  fol- 
lowing, that  is  to  say,(c)  {here  give  the  libellous  matter  in  the  man- 

(a)  As  composing  or  writing  a  libel  merely,  does  not  seem  to  be  an  ofFoncc  unless  the 
libel  be  afterwards  published,  the  indictment  must  charge  a  publication ;  R.  v.  Burdett,  4 

B.  &,  Al.  95;  Wh.  C.  L.  549.  Where,  however,  a  libel  is  written  in  the  County  of  L., 
with  intent  to  publish  it,  and  is  afterwards  published  in  the  County  of  ,M.,  the  defendant 
may  be  indicted  for  a  misdemeanor  in  either  county ;  ib.;  bij  three  judges,  Bayley  J.  du- 
bilante. 

(aa)  This  joinder  is  not  bad  for  duplicity ;  ante,  pp.  130,  481,  489. 

(6)  It  should  be  stated  that  the  libel  was  of  and  coticerning  the  prosecutor  ;  4  M.  &  S. 
164;  7  Mod.  400;  4  B.  &  A.  314;  and  if  necessary,  what  were  the  circumstances  of  the 
publication;  State  v.  Henderson,  1  Richardson  179.  On  an  indictment  for  a  libel  against 
Jane  Cox,  which  libel  described  her  as  the  only  daughter  of  the  widow  Rouch,  tlie  innuendo 
in  the  indictment  stated  the  identity  of  Mrs.  R.'s  daughter  and  of  the  prosecutrix  Mrs. 
Cox  :  it  was  held  that  it  was  not  necessary  to  prove  tliat  the  prosecutrix  was  the  only 
daughter;  State  v.  Perrin,  1  Tr.  Con.  Rep.  446;  3  Brevard  152.  It  has  been  determined 
that  it  is  a  proper  question  to  ask  a  witness  whellier,  in  his  opinion,  the  alleged  libellous 
words  referred  to  the  party  alleged  to  be  libelled ;  Com.  v.  Buckingham,  Thaclicr's  C.  C. 
29.  In  an  indictment  for  a  libel  against  A.  S.,  omitting  to  allege  that  the  libel  was 
"  of  and  concerning  A.  S.,"  it  was  held  that  such  omission  was  not  supplied  by  its  being 
alleged  in  the  introductory  part,  "that  the  defendant  intending  to  vilify  A.  S.,  he  having 
been  mayor  of,  &c.,  and  to  cause  it  to  be  believed,  that  as  such  mayor  he  had  practised 
corruption  and  had  been  guilty  of  abuse  in  respect  to  granting  a  license  to  retail  beer," 
&c.,  and  concluding,  "  to  the  injury  and  disgrace  of  A.  S.,"  &,c.,  although  the  innuendoes 
pointed  the  ditferent  parts  of  the  libel  to  A.  S.  and  J.  L.  and  to  the  granting  the  license ; 
4  M.  &  S.  164.  See  also  Clement  v.  Fisher,  7  B.  &.  C.  459;  State  v.  Nease,  2  Tay- 
lor's (N.  C.)  R.  270.  But  this  statement  does  not  appear  necessary  where  the  libel  is 
stated  to  have  been  addressed  to  the  plaintiff  and  written  in  the  second  person,  "  You," 
&c.;  1  Saund.  242,  n.  n,  3;  Cro.  J.  231.  Whenever  an  inducement  of  extrinsic  matter  is 
necessary  to  constitute  tlie  matter  libellous,  it  is  necessary  to  aver  that  the  libel  was  of  and 
concerning  suck  matter;  8  E:ist  427  ;  I  Saund.  242-3,  n.  3,  4 ;  when  not,  see  Ld.  Raym. 
1480;  2  Lev.  62;  Cro.  Car.  270. 

(c)  The  alleged  libellous  matter  must  be  set  out  correctly  ;  Wright  v.  Clement,  3  B.  & 
Al.  503;  Tabart  v.  Tipper,  1  Campb.  352;  Cartwright  v.  Wright,  1  D.  &.  R.  230;  State  v. 
Stephens,  Wright's  Ohio  R.  73  ;  Com.  v.  Gillespie,  7  S.  ,.t  R.  469  ;  Com.  v.  Stow,  I  Mass. 
51;  Com.  v.  Bailey,  I  Mass.  62;  State  v.  Farrand,  3  Halst.  333;  State  v.  Guslin,  2  South. 
R.  749  ;  State  v.  Street,  Taylor  158;  State  v.  Bradley,  1  Ilav.  403  ;  State  v  Coffey,  N.  C 
Term  R.  272;  U.  S.  v.  Hinman,  1  Bald.  292;  U.  S.  v.  Britton,  2  Mason  462;  People  c. 
Franklin,  3  Johns.  C.  299;  Com.  v.  Scarle,  2  Binn.  2.32;  State  v.  Carr,  5  M.  Hamp.  367  ; 
Com.  V.  Bailey,  1  Mass.  62 ;  Com.  v.  Stevens,  ib.  203 ;  Corn.  v.  Parnienter,  5  Pick.  279 ; 
State  V.  Molier,  1  Dev.  263;  State  v.  Carter,  Conf  (N.  C.)  R.  210;  State  «.  Wimbcrly,  3 
M'Cord  190;  State  v.  Twitty,  2  Hawks  487;  Com.  v.  Sweeny,  10  S.  &  R.  173;  Com.  v. 
Kearns,  I  Va. Cases  109;  States.  Waters, 3  Brev. 507;  Const. Ct.  R.  169;  Sedirwick  J.,  8  Mas.s. 
110;  People  ».  Badgley,  16  Wend.  53 ;  Pendleton  v.  Com.,  4  Leigh  694 ;  Stale  v.  Parker,  1 
Chipman's  Verm.  R.  298;  State  v.  Potts,  4  Halst.  26;  People  v.  Kingsley,  6  Cow.  522;  State 
V.  Squires,  1  Tyler's  Verm.  R.  147 ;  Com.  v.  Holmes,  17  Mass.  336 ;  Com.  c.  Sharpless,  2  S. 
&,  R.  91  ;  Bucher  v.  Jarrat,  3  B.  &  P.  143;  Howe  v.  Hall,  14  East  275;  see  ante,  p.  130, 
It  is  not  enough  to  charge  the  libel  to  contain  "  in  substance"  the  matter  following ;  3  B. 
&  A.  508 ;  or  that  it  was  "  to  the  effect  following ;"  2  Salk.  417,  600  ;  1 1  .Mood.  78,  84,  85  ; 
Com.  ».  Sweeny,  10  S.  &  R.  173;  State  v.  Walsh,  2  M'Cord  248.  The  usual  methods  of 
introducing  the  libellous  words,  as  will  appear  more  fully  in  the  precedents  which  are  to 
follow,  are:  "in  which  said  (paper,  book  or  letter  as  the  case  may  be),  was  and  is  con- 
tained amongst  other  things  the  false,  scandalous,  defamatory  and  libellous  words  and 
matter  following,  of  and  concerning  the  said  A.  B."  &c. ;  2  Stark,  on  Slaiid.  383;  or  did 
publish,  &.C.,  "  a  certain  false,  &,c.,  libel  according  to  the  tenor  following  ;"  or,  "  containing 
divers  scandalous,  &-c.,  matters  according  to  the  tenor  following,  that  is  to  say;"  3  Chit. 

C.  Ij.  887-8-9;  and  see  the  prefatory  averments  used  in  cases  of  forgery,  ante,  p.  130. 
The  leading  case  on  this  point  is  King  v.  Bear,  2  Salk.  417.  The  indictment  was  for 
composing,  writing,  making  and  collecting  several  libels  in  tino  quorum  cuntinetur  inter 
alia  juxta  tenorem,  et  ad  effectum  sequentum,  and  tlie  words  were  then  set  out.     And  it 

46* 


516  OFFEVCES  AGAINST  SOCIETY. 

ner  stated  in  the  note,  and  proceed^ :  to  the  great  injury,  scandal 
and  disgrace  of  the  said  C.  D.,  and  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

was  agreed  that  ad  effectum  would  of  itself  have  been  bad,  since  the  court  must  judge  of 
tiie  words  themselves  and  not  of  the  construction  the  prosecutor  puts  upon  them  ;  but  that 
the  words  juxta  tennrem  sequentum  import  tlie  very  words  themselves;  2  Salk.  417.  And 
it  was  held  that  the  words  '■'■ad  ejj'ectum"  were  loose  and  useless  words ;  but  that  the  words 
juxta  tenorem,  being  of  a  more  certain  or  strict  signification,  the  force  of  the  latter  was 
not  hurt  by  the  former,  aecordinir  to  the  maxim  "  utile  per  inutile  non  vitiatur." 

In  the  same  case,  that  of  Ford  v.  Bennett,  1  Ld.  Raym.  415,  was  referred  to,  where,  in  a 
special  action  upon  the  case  against  Bennett  et  al.,  the  plaintiff  declared  that  the  defend- 
ants at  Saltashe  procured  a  false  and  scandalous  libel  against  the  plaintiff,  to  be  written 
under  the  form  of  a  petition,  and  the  libel  was  set  forth  after  the  words  continetur  ad 
lenorem  et  ad  effectum  sequentum.  Two  were  found  guilty,  upon  which  judgment  was 
entered  for  the  plaintiff,  and  afterwards  upon  error  brought  in  the  exchequer,  the  judgment 
was  affirmed,  the  exception  taken  to  the  words  ad  effectum  having  been  overruled  without 
consideration.  And  Holt  C  J.  said,  that  he  then  thought  the  judgment  to  be  given  with 
too  great  precipitation,  but  he  afterwards,  u|)on  gieat  consideration,  had  esteemed  it  to  be 
very  good  law.  And  tiie  King  v.  Fuller,  Mich.  4  Wm.  &  Mary,  and  the  King  v.  Young,  ih., 
were  citi  d  as  authorities  in  point;  and  the  whole  court  were  of  opinion  that,  notwith- 
stunding  the  exception,  the  indictment  was  good;  but  that  if  it  had  been  only  ad  effectum 
sequentvm,  it  had  been  ill,  because  it  had  not  imported  that  the  words  were  the  specific 
words  whicli  were  in  the  libel. 

This  rule,  however,  is  relaxed  in  the  following  cases : 

1.  Where  the  libellous  matter  is  in  the  defendant's  possession^and  he  though  notified  to 
do  so,  refuses  to  produce  it.  In  such  a  case  it  will  be  enough  for  the  jury  to  aver  the  fact 
of  such  possession,  as  an  excuse  for  the  non-setting  forth  of  the  tenor  of  the  libel,  and 
then,  as  will  be  done  in  a  form  which  will  be  presently  given,  to  set  forth  the  substance. 
This  course  was  first  suggested  in  the  King's  Bench  in  King  v.  Watson,  2  T.  R.  200, 
where  an  information  was  asked'  against  a  corporation  for  a  libel,  tlie  libellous  writing 
being  in  the  hands  of  the  defendant,  and  not  within  the  control  of  the  prosecution.  Tiie 
case  did  not  proceed  to  trial,  but  it  was  strongly  intimated  by  BuUer  J.  that  if  it  should, 
and  the  defendant  refused  to  deliver  the  libellous  ^aper,  after  notice,  it  would  be  enough 
for  the  prosecution  to  prove  the  substances.  And  it  has  since  been  held,  in  prosecutions 
for  forgery,  that  if  the  prosecutor  a  reasonable  time  before  the  commencement  of  the 
assizes,  gives  the  prisoner  notice  to  produce  the  alleged  forged  writing,  he  is  entitled,  on 
)ion-production,  to  give  secondary  evidence  of  its  contents;  R.  v.  Haworth,  4  C.  &-  P.  254; 
R.  ».  Hunter,  ib.  128;  see  ante,  p.  132.  In  Massachusetts,  Vermont,  New  York,  New 
Jersey  and  Virginia,  as  well  as  in  the  United  States  courts,  it  has  been  laid  down  that  in 
such  cases  it  is  proper  and  necessary  for  the  prosecution  to  aver  specially  in  the  indict- 
ment the  loss  of  the  instrument  in  question,  or  a  possession  and  non-production  by  the 
defendant;  see  Sedgwick  J.,  8  Mass.  110;  People  v.  Badgley,  16  Wend.  53;  Pendleton  v. 
Com.,  4  Leigh  694  ;  U.S.  v.  Britton,  2  Mason  461  ;  Slate  v.  Parker,  1  Chij)man's  Verm. 
R.  298;  State  v.  Potts,  4  Halst.  293;  Buciier  v.  Jarrat,  3  B.  &.  P.  143;  Howe  v.  Hall,  14 
East  275.     See  for  a  precedent  of  same/)os/,  559. 

2.  Where  the  libellous  matter  is  lost  or  destroyed,  when  the  sam'e  cause  would  undoubt- 
edly be  sustained. 

.3.  Wliere  the  libel  is  of  so  indecent  a  character  as  to  make  it  unfit  to  be  spread  on  the 
record,  in  which  case  it  is  detern)ined  that  it  is  enough  for  the  grand  jury  to  say  "that 
the  same  would  be  offensive  to  the  court  here,  and  improper  to  be  placed  on  the  records 
thereof,"  in  which  case  the  non-setting  forth  of  the  libel  is  held  to  be  sufficiently  excused; 
Com.  B.  Holmes,  17  Mass.  336. 

If  tlie  libel  be  in  a  foreign  language,  it  must  be  set  out  in  such  language  vrrhnlim,  to- 
gether with  a  correct  translation,  as  will  appear  in  one  of  the  following  forms.  See  Zenobio 
t>.  Aztel,  6  T.  R.  162  ;  Wormoth  v.  Cramer,  4  Wend.  394. 

If  parts  of  the  publication  be  selected  tlicy  must  be  set  forth  thus  :  "  in  a  certain  part 
of  which  said  there  were  and  are  contained   certain  false,  wicked,  malicious,  scan- 

dalous, seditious  and  libellous  matters,  of  and  concerning,  <fec.,  according  to  the  tenor  and 
effect  following,  that  is  to  say;" — and  then  after  setting  forth  the  first  extract,  introducing 
the  second,  preceding  it  by:  "and  in  a  certain  other  part,"  &c.    See  1  Carnpb.  350. 

Jnnupvdo.  Where  the  matter  written  is  not  in  itself  obviously  libellous,  it  is  neces- 
sary to  render  it  so  by  ex[)laining  its  real  meaning  by  an  innuendo.  Its  nature  and 
office  is  to  explain  the  defendant's  meaning  by  refi'rence  to  such  inducement  or  matter 
previously  expressed  in  the  proceedings;  Shaffer  «;.  Kintzcr,  1  Biun.  R.  537,  542;  liloas  o. 


LIRF.L.  547 

Llhel  on  an  individual  generally. 

That  C.  D.,  late,  &.C.,  being  a  person  of  an  envious,  evil  and  wicked 
mind,  and  of  a  most  malicious  disposition,  and  wickedly,  maliciously 

Tobey,  2  Pick.  (2d  cd.)  327,  n.;  Shely  v.  Biggs,  2  Har.  &  J.  363  ;  Goodrich  v.  Wolcott,  3 
Cowp.  236;  Van  Vetchen  v.  Hopkins,  5  Johns.  R.  220;  Slow  v.  Converse,  4  Conn.  R.  18; 
where  tfie  intent  may  be  mistaken,  or  where  it  cannot  be  collected  from  the  libel  itself; 
Cowp.  629,  683 ;  5  East  463 ;  or  where  the  words  of  the  writing  are  general,  ironical,  or 
written  by  way  of  allusion  or  inference,  so  that  in  order  to  show  its  offensive  meaning  an 
innuendo  is  necessary  to  connect  with  some  facts  or  associations  not  expressed  in  words, 
but  which  they  necessarily  presented  to  the  mind.  As  an  innuendo  can  explain  only  in 
cises  where  something  already  appears  upon  the  record  to  ground  the  explanation,  it  can. 
not  of  itself  change,  add  to  or  enlarge  the  sense  of  expressions  beyond  their  usual  accep- 
tation and  meaning.  See  2  Salk.513;  Cowp.  684.  In  an  action  against  a  man  for  saying 
of  another  "  he  has  burnt  my  barn,"  the  plaintiff  cannot  by  way  of  innuendo  say,  "  mean- 
ing my  barn  full  of  corn ;"  Barham^s  case,  4  Co.,  20,  a  ;  because  this  is  not  an  explanation 
derived  from  anything  which  preceded  it  on  the  record;  but  from  the  statement  of  an 
extrinsic  fact  which  had  not  previously  been  stated.  But  if  in  the  introductory  part  of 
the  declaration,  it  had  been  averred  that  the  defendant  had  a  barn  full  of  corn,  and  that, 
in  a  discourse  about  the  barn  he  had  spoken  the  above  words  of  the  plaintiff,  an  innuendo 
of  its  being  the  barn  full  of  corn  would  have  been  good;  for  by  coupling  the  innuendo 
with  the  introductory  averment,  it  would  have  made  it  complete;  R.  v.  Tutchin,  5  St.  Tr. 
.'532  ;  Alexander  v.  Angle,  1  C.  &.  3.  143  ;  Arch.  C.  P.  494  ;  1  Roll.  Abr.  83,  pi.  7,  85,  pi.  7  ; 
7  B.  &  C.  459 ;  Clement  p.  Fisher,  1  Man.  &  Ry.  281  ;  2  Roll.  Rep.  244 ;  Cro.  Jac.  126-39  ; 
C  B.  &.  C.  154;  Goldstein  v.  Foss,  9  D.  &,  R.  197 ;  1  Sid.  52 ;  2  Str.  934 ;  1  Saund.  242,  n, 
3.  Thus,  in  an  action  for  the  words  "  He  is  a  thief"  you  cannot  explain  the  defendant's 
meaning  in  the  use  of  the  word  "  he"  by  an  innuendo  "  meaning  the  said  plaintiff"  or  the 
like,  unless  something  appear  previously  upon  the  record  to  ground  that  explanation  ; 
but  if  you  had  previously  charged  the  words  to  have  been  spoken  of  and  concerning 
tlie  plaintiff,  then  such  an  innuendo  would  be  correct;  for,  when  it  is  alleged  that  the 
defendant  said  of  the  plaintiff  "  He  is  a  thief"  this  is  an  evident  ground  for  the  explana- 
tion given  by  the  innuendo,  that  tiie  plaintiff  was  referred  to  by  tiie  word  "  he:"  State  v. 
Chase,  1  Walker  384;  State  v.  Henderson,  I  Richardson  179;  R.  v.  Bindett,  4  B.  &  Al. 
95;  Bradley  v.  State,  1  Walker  156;  State  v.  Neese,  N.  C.  Term  R.  270  ;  2  Salk.  512; 
\'an  Vetchen  v.  Hopkins,  5  Johns.  211  ;  Cowp.  684;  Mix  v.  Woodward,  12  Conn.  262; 
Usher  v.  Severance,  20  Maine  R.  50;  Zcnobio  v.  Aztel,  6  T.  R.  162;  Wh.  C.  L.  82;  Cart- 
Wright  V.  Wright,  1  D.  &  R.  230 ;  Wright  v.  Clements,  3  B.  &  Al.  503 ;  Walsh  v.  State, 
2  M'Cord  285;  1  Campb.  350,  per  Ld.  Ellenborough ;  Arch.  C.  P.  494;  3  Brevard  152; 
State  V.  Perrin,  1  Tr.  Con.  Rep.  446;  2  Brevard  474;  Barham's  case,  4  Co.  20,  a;  Com. 
T.  Buckingham,  Thacher's  C.  C.  29;  Miller  v.  Maxwell,  16  Wend.  9;  2  Hill  472; 
12  Johns.  474;  R.  v.  Tutchen,  5  St.  Tr.  532;  Alexander  v.  Angle,  1  C.  «&  J.  143;  1  Roll, 
Abr.  83,  pi.  7,  85,  pi.  7 ;  7  B.  &  C.  4.59 ;  2  Roll.  Rep.  244 ;  Cro.  Jac.  126-39 ;  Clement  v. 
Fisher,  1  Man.  &.  Ry.  281  ;  1  Sid.  .52;  2  Str.  934;   1  Saund.  242,  n.  3;  Goldstein  v.  Foss, 

9  D.  &  R.  197;  6  B.  &  C.  154;  2  Roll.  Rep.  244 ;  Tomlinson  v.  Brittlebank,  4  B.  &,  Ad. 
630  ;  1  N.  &  M.  455 ;  Sweetap|)le  v.  Jesse,  5  B.  &  Ad.  27 ;  2  N.  &  M.  36 ;  Curtis  v.  Curtis, 

10  Bing.  447;  4  M.  &,  Scott  37;  Storoman  v.  Dulton,  10  Bing.  502;  4  M.  &,  Scott  174; 
Day  V.  Robinson,  1  Ad.  &.  El.  554;  4  N.  &  M.  884.  Where  the  plaintiff  averred,  by  way 
of  innuendo,  that  the  defendant  in  attributing  the  authorship  of  a  certain  article  to  a 
"  celebrated  surgeon  of  whisky  memory,"  or  to  a  "  noted  steam-doctor,"  rrreant  by  the 
appellations  the  plaintiff;  it  was  held,  notwithstanding  the  innuendo,  that  the  declaration 
was  bad  for  want  of  an  averment  that  the  plaintiff  was  generally  known  by  those  appel- 
lations, or  that  the  defendant  was  in  the  habit  of  applying  them  to  him,  or  something  to 
that  effect;  Miller  v.  Maxwell,  16  Wend.  9  ;  see  also  2  HHl  472,  and  12  Johns.  474.  "  Its 
simple  object,"  says  .Mr.  Chitty  (C.  L.  875),  "  is  to  reduce  a  natural  to  a  legal  certainty; 
it  signifies  no  nrwre  than  id  est  or  scilicet,  that  such  a  person  means  a  particular  person, 
or  such  a  thing  a  particular  thing,  and  must  have  precedent  matter  to  which  it  refers;  4 
Co.  17,  b.  Every  thing  therefore,  as  we  have  already  seen,  intended  to  be  thus  alluded  to, 
must  be  stated  previous  to  the  innuendo,  which  is  to  apply  it  to  the  matter  charged  as 
libellous.  But  wiienever  the  innuendo  is  erroneous  in  consequence  of  its  going  beyond  its 
office,  if  the  libel  T)e  clear  to  a  common  intent  without  it,  the  defective  part  may  be 
rejected  as  surplusage,  6  East  95;  8  East  427;  Cro.  Car.  512;  Cowp.  275  ;  5  E.ist  463; 
but  care  should  be  taken  not  to  insert  more  innuendoes  than  arc  absolutely  necessary,  for 
the  practice  of  overloading  the  record  with  innuendoes,  to  explain  facts  which  need  no 
explanation,  is  censurable  ;  and  Ld.  Elleaboeough  said,"  that  such  practice  seemed  to  pro- 


548  OFFENCES  AGAINST  SOCIETY. 

and  luilavvfully  minding,  contriving  and  intending  as  much  as  in  him 
lay  to  injure,  oppress,  aggrieve  and  vilify  the  good  name,  fame,  credit 
and  reputation  of  A.  B.,  a  good,  peaceable  and  worthy  subject  of  onr 
said  lord  the  king,  and  to  bring  him  into  pubHc  scandal,  hatred, 
infamy  and  disgrace  [or,  into  public  scandal,  contempt,  ridicule  and 
disgrace,  &c.,  according  to  the  nature  of  the  libel),  with  force  and 
arms  on,  &c.,  at,  &c.,  of  his  great  hatred,  malice  and  ill-will  towards 
the  said  A.  13.,  wickedly,  maliciously  and  unlawfully  did  compose 
and  write  and  cause  and  procure  to  be  composed  and  written,  a  cer- 
tain false,  scandalous,  malicious  and  defamatory  libel,  of  and  concern- 
ing the  said  A.  B.,  containing  the  false,  scandalous,  malicious  and 
defamatory  words  and  matter  following,  of  and  concerning  the  said 
A.  B.,  that  is  to  say,  {set  out  a  copy,  with  proper  innuendoes  to 
explain  the  meaning,  if  they  be  iiecessary),  which  said  scandalous, 
malicious  and  defamatory  libel,  he  the  said  C.  D.  afterwards,  to  wit, 
on,  &c.,  at,  &c.,  wickedly,  maliciously  and  unlawfully  did  send(of) 
and  cause  to  be  sent  to  one  E.  F.,  in  the  form  of  a  letter,  directed  to 
the  said  E.  F.,  and  did  thereby  then  and  there  unlawfully,  wickedly 
and  maliciously  publish  and  cause  to  be  published  the  said  libel,  to 
the  great  damage,  disgrace,  scandal  and  infamy  of  the  said  A.  B.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count. 

That  the  said  C.  D.  being  such  envious,  evil,  wicked  and  malicious 
person,  and  wickedly,  maliciously  and  unlawfully  minding,  contriving 
and  intending  as  aforesaid,  afterwards,  to  wit,  on  the  same  day  and 
year  aforesaid,  with  force  and  arms  at,  &c.,  of  his  great  hatred,  malice 
and  ill-will  towards  the  said  A.  B.,  wickedly,  maliciously  and  unlaw- 
fidly  did  write  {or  print),  and  publish,  and  cause  and  procure  to  be 
written  [or  printed)  and  published  ascertain  other  false,  scandalous, 
malicious  and  defamatory  libel  of  and  concerning  the  said  A.  B.,  con- 
taining the  false,  scandalous,  malicious  and  defamatory  words  and 
matter  following,  of  and  concerning  the  said  A.  B.,  that  is  to  say, 
{set  out  the  libel,  and  conclude  as  before). 

Third  count.     For  publishing  generally. 

cccd  on  the  supposition  that  the  court  had  no  discernment  and  the  jury  no  understanding^, 
and  an  innuendo  may  sometimes  be  injuriously  narrowing  and  limiting  the  prosecutor's 
case  in  proof;"  3  (Jainpb.  4G1  ;  7  Price  544. 

In  an  action  on  tiie  case  ajjainst  a  man  for  saying  of  another  "he  has  burnt  my  barn," 
tlie  plaiTitirt"  cannot  by  way  of  innuendo  say,  "  meaning  my  barn  full  of  corn  ;"  liarliam's 
case,  4  Co.  20,  a  ;  becau.'^e  this  is  not  an  explanation  deriTcd  from  anything  wliich  preceded 
it  on  the  rccoid,  but  from  the  statement  of  an  intrinsic  fact  which  had  not  previously  been 
stated.  But  if,  in  liie  introductory  part  of  the  declaration,  it  had  been  averred  that  tlie  de- 
fendant iiad  a  barn  full  of  corn,  and  that  in  a  discourse  about  the  barn  he  had  sjioken  the 
above  words  of  the  plaintiff,  an  innuendo  of  its  being  the  barn  full  of  corn  would  have 
been  good  ;  for  by  coupling  the  inrmendo  with  the  introductory  averment,  it  would  have 
made  it  complete;  R.  r.  Tutchin,  5  St.  Tr.  .5rt2 ;  Arch.  ('.  P.  4!)4  ;  Aievandcr  v.  Angle,  I 
(;.  &,  J.  ]4:< ;  1  Roll.  Abr.  H.3,  pi.  7,  85,  i)l.  7  ;  7  M.  <V.  C:.  45!) ;  Cro.  Jac.  V2i\-m ;  Clement  v. 
Finber,  1  Man.  &  Ry.  281;  1  Sid.  52 ;  6  H.  &  (\  154;  2  Roll.  Rep.  2.44;  2  Str.  934;  Gold- 
stein  V.  Foss,  \)  1).  &  R.  1!)7;  1  Saund.  242,  n.  3. 

{(t)  2  Stark,  on  Slander  'MV.). 

Where  a  libel  merely  reflects  on  a  person  in  his  profession,  trade  or  business,  and  the 
piiblieation  is  confined  to  that  |>crson,  it  is  not  siitlieient  to  aver  an  intention  to  disparage 
and  injure  the  party  iri  his  profession,  trade  or  business;  the  indictment  ought  to  allege 
an  intent  to  |)rovoke  and  excite  the  proseeutur  to  a  breach  of  tiie  ()eace  ;  R.  v.  Wegener,  1 
Stark.  C.  543;  siipru,  2  Stark,  on  Slander  324. 


LIBEL.  549 

Writivg  a  libellous  letter  to  proseculo7:{e) 

That  A.  B.,  of,  &:c,,  maliciously  and  unlawfully  intending  one  C.  D. 
to  injure,  oppress  and  vilify,  and  bring  into  contempt  and  ridicule, 
on,  &c.,  at,  &c.,  in  said  county,  unlawfully  and  maliciously  did  write 
and  cause  to  be  written  a  certain  false,  malicious  and  defamatory 
libel  of  and  concerning  the  said  C.  D.,  which  said  false,  malicious  and 
defamatory  libel  is  of  the  following  purport  and  effect,  that  is  to  say, 
{here  insert  the  libel,  tvilh  proper  innuendoes),  which  said  false,  ma- 
licious and  defamatory  libel  he  the  said  A.  B.  afterwards,  to  wit,  on, 
&c.,  at,  &c,,  aforesaid,  in  the  county  aforesaid,  maliciously  and  un- 
lawfully did  send  and  deliver,  and  cause  to  be  sent  and  delivered  to 
the  said  C.  D.,  in  the  form  of  a  letter,  directed  to  the  said  C.  D.,  by 
the  name  of,  {here  insert  the  superscription  to  the  letter);  to  the 
great  injury,  damage  and  scandal  of  the  said  C.  D.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Publisking  a  libellous  letter,  imputing  the  crime  of  theft  to  the  prosecu- 
tor.{f) 

That  A.  B.,  of,  &c.,  designing  and  maliciously  intending  to  injure, 
vilify  and  defame  the  character  and  credit  of  one  C.  D.,  and  to  bring 
him  into  disgrace  and  infamy,  on,  &c.,  at,&c.,  in  the  county  aforesaid, 
a  certain  false,  scandalous  and  libellous  writing  against  him  the  said 
C.  D.,  and  of  and  concerning  him  the  said  C.  D.,  falsely  and  mali- 
ciously did  frame  and  make;  and  in  the  name  of  him  the  said  A.  B., 
did  then  and  there  write  and  publish,  and  cause  to  be  written  and 
published,  in  form  of  a  letter,  directed  to  him  the  said  C.  D.,  the  pur- 
port and  effect  of  which  said  writing  is  as  follows:  "To  C.  D.,  &c., 
{here  insert  the  letter  correctly,  with  proper  innuendoes) ;  and  that 
the  said  A,  B.,  with  intention  to  injure,  abuse  and  defame  the  said 
C.  D.,  and  to  bring  him  into  contempt,  disgrace  and  infamy,  the  said 
false,  libellous  and  malicious  writing,  so  as  aforesaid  framed,  written 
and  made,  afterwards,  to  wit,  on,  &.C.,  at,  &:c.,  to  one  E.  F.,  and  to 
divers  other  good  citizens  of  the  said  commonwealth  then  and  there 
present,  did  maliciously  and  openly  deliver  and  publish,  and  cause 
to  be  openly  delivered  aixl  published,  to  the  great  damage,  infamy 
and  scandal  of  him  the  said  C.  D.,  and  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 

Libel  on  a  person  icho  was  dead.{g) 

That  A.  B.,  of,  6iC.,  being  a  person  of  revengeful  and  malicious 
disposition,  and  maliciously  intending  to  injure,  defame,  vilify  and 
disgrace  the  memory,  character  and  reputation  of  one  C.  D.,  then 
deceased,  and  to  bring  the  family,  relations  and  descendants  of  the 
said  C.  D.  into  disgrace,  contempt  and  infamy,  and  to  cause  it  to  be 
believed  that  the  said  C.  D.,in  his  lifetime,  was  a  person  of  a  vicious, 
immoral  and  depraved  mind  and  disposition,  and  destitute  of  filial 

(e)  Davis' Prec.  161.  (/)  Davis' Prec.  154;   3  Chit.  C.  L.  888. 

(,g)  Davis'  Prec.  158-9;  3  Chit.  914. 


550  OFFENCES    AGAINST  SOCIETY. 

duty  and  affection,  and  that  the  said  C.  D.  led  an  immoral  and  profli- 
gate life,  on,  &c.,  at,  &c.,  in  said  county,  unlawfully  and  maliciously 
did  print  and  publish,  and  did  cause  and  procure  to  be  printed  and 
published,  in  a  certain  newspaper  called  "The  World,"  a  certain 
false,  scandalous  and  malicious  libel,  of  and  concerning  the  said  C. 
D.,  which  said  false,  scandalous  and  malicious  libel  is  of  the  purport 
and  effect  following,  to  wit,  {hei^e  set  forth  the  libel,  with  proper 
innuendoes^  to  the  great  scandal  and  disgrace  of  the  memory,  repu- 
tation and  character  of  the  said  C.  D.,  and  against,  &c.  {Conclude 
us  in  book  1,  chap.  3). 

Postivg  a  man  as  a  scoundrel,  ^'C.{li) 

That  W,  C,  late  of,  &c.,  being  a  person  of  an  envious  and  wicked 
mind  and  of  a  malicious  disposition,  and  unlawfully  contriving  and 
intending  as  much  as  in  him  lay  to  injure,  oppress,  aggrieve  and 
vilify  the  good  name,  credit  and  reputation  of  one  C.  H.,  &c.,  and  to 
bring  him  into  great  contempt,  hatred,  infamy  and  disgrace,  on,  &c., 
with  force  and  arms  at,  &c.,  a  certain  false,  scandalous  and  libellous 
writing  against  the  said  C,  H.,  falsely,  maliciously  and  scandalously 
did  frame  and  make,  and  then  and  there  cause  to  be  written,  pub- 
lished and  posted  up,  the  purport,  substance  and  effect  of  which  said 
writing  is  as  follows,  to  wit,  "  C.  H.  (meaning  the  aforesaid  C.  H.), 
is  a  lyar,  a  scoundrel,  a  cheat  and  a  swindler — don't  pul  this  down, 
Nov.  7,  1807;"  and  that  the  said  W.  C,  with  intention  to  scandalize 
the  said  C.  H.  and  to  bring  him  into  contempt,  infamy  and  disgrace, 
the  aforesaid  false,  scandalous,  malicious  and  libellous  writing  so  as 
aforesaid  written,  framed  and  made,  afterwards,  to  wit,  on,  &c.,  afore- 
said, at  Boston  aforesaid,  and  in  one  of  the  public  streets  of  said 
town,  falsely,  maliciously  and  scandalously  did  publish  and  post  up 
and  cause  to  be  published  and  posted  up,  to  the  great  scandal, 
infamy  and  damage  of  the  said  C.  H,,  to  the  evil  example,  &,c,,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Libel  upon  an  attorney,  contained  in  a  letter.{i) 

That  on,  &c.,  at,  &c.,  one  A.  B,  was  one  of  the  attorneys  of  the 
Supreme  Judicial  Court  of  this  commonwealth,  and  had  been  and 
was  before  the  composing,  writing  and  publishing  of  the  several 
false,  malicious  and  defamatory  libels  hereinafter  mentioned,  retained 
and  emfiloyed  by  one  C.  I).,  in  the  business  and  employment  of  his 
the  said  A.  B.'s  profession  of  an  attorney  at  law,  to  write  a  letter  to 
one  E.  F.,  demanding  payment  of  a  certain  sum  of  money,  to  wit, 
the  sum  of  fifty  dollars,  then  due  and  owing  froin  the  said  E.  F.  to 
the  said  C.  D.,  and  that  the  said  E.  F.,  of,  &c.,  unlawfully  and  mali- 
ciously contriving  and  intending  to  injure,  scandalize,  vilify  and 
defame  the  said  A.  B.,  and  to  bring  him  into  public  scandal  and  dis- 
grace, and  to  injure,  prejudice  and  ruin  him  in  his  said  business  and 
profession  of  an  attorney  at  law,  on,  &c.,  at,  &c.,  aforesaid,  unlaw- 

(/.)  Com.  V.  Clap,  4  Mass.  1G3.  (i)  Davis'  Prec.  l.'iG;  3  Chit.  C.  L.  8U4. 


LIBEL.  551 

fully  and  maliciously  did  compose  and  write  a  certain  false,  scan- 
dalous, malicious  and  defamatory  libel  of  and  concerning  the  said  A. 
B.  in  his  said  business  and  profession,  and  of  and  concerning  the  de- 
mand aforesaid,  so  as  aforesaid  made  by  the  said  A.  B.  on  the  said 
E.  F.  as  aforesaid,  containing  therein  among  other  things  the  false, 
malicious,  defamatory  and  libellous  words  and  matter  following,  of 
and  concerning  the  said  A.  B.,  that  is  to  say,  {here  insert  the  libel- 
lous matter,  with  proper  innuendoes),  which  said  false,  malicious 
and  defamatory  libel  he  the  said  E.  F.,  afterwards,  to  wit,  on,  &c,,  at, 
&c.,  unlawfully  and  maliciously  did  send  and  cause  to  be  sent  to  the 
said  C.  D.,  in  the  form  of  a  letter  addressed  to  the  said  C.  D.,  and 
thereby  then  and  there  unlawfully  and  maliciously  did  publish  and 
cause  to  be  published  the  aforesaid  libel,  against,  &c.  [Conclude  as 
in  book  1,  chap.  3).  • 

Publishing  an  ex  parte  statement  of  an  examination  before  a  magistrate 
for  an  offence  xcith  which  tlie  defendant  was  charged.{j) 

That  before  the  printing  and  publishing  of  the  defamatory  and 
malicious  libel  herein  afterwards  mentioned,  to  wit,  on,  &c.,  one  A. 
B.  preferred  to  and  before  C.  D.,  Esq.,  then  and  still  one  of  the  jus- 
tices of  the  peace  within  and  for  the  county  of  duly  and  legally 
authorized,  appointed  and  qualified  to  discharge  and  perform  the 
duties  of  said  office,  a  certain  complaint  and  charge  in  due  form  of 
law,  against  one  E.  F.,  for  that  he  the  said  E.  F.  on,  &c.,  at,&c.,  with 
force  and  arms,  in  and  upon  the  body  of  her  the  said  A.  B.  did  make 
an  assault,  with  intent  her  the  said  A  B.  to  ravish  and  carnally  know, 
by  force  and  against  lier  will,  against  the  peace,  &c.,  and  the  form  of 
the  statiUe,  &.c.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  G.  H.,  of,  &c.,  printer,  well  knowing  the  pre- 
mises but  devising  and  intending  to  traduce  and  defame  the  said  E. 
F.,  and  to  injure  and  prejudice  him  in  the  minds  of  the  good  people 
of  said  conmionwealth,  and  to  cause  it  to  be  believed  that  he  was 
guilty  of  the  said  felonious  assault,  and  thereby  to  prevent  the  due 
administration  of  justice  and  to  deprive  the  said  E.  F.  of  the  benefit 
of  an  impartial  trial  for  and  concerning  the  matter  of  the  said  charge, 
on,  &:c.,  at,  &c.,  did  wilfully  and  maliciously  print  and  publish  and 
did  cause  and  procure  to  be  printed  and  published,  a  certain  scandal- 
ous, malicious  and  defamatory  libel,  of  and  concerning  the  said  charge 
and  tlie  matter  thereof,  and  of  and  concerning  the  said  E.  F. ;  which 
said  scandalous  and  malicious  libel  is  of  the  following  purport  and 
effect,  that  is  to  say,  [here  insert  the  publication  correctlxi  and  with 
proper  innuendoes),  to  the  great  damage,  &c,,  of  him  the  said  E.  P., 
and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Infarmalion  for  icriilng  and  publishing  a  libel  against  the  king  and 
government. [k) 

That  J.  H.,  late,  &c.,  being  a  wicked,  malicious,  seditious  and  ill- 

(»  Davis'  Prec.  158;  3  Chit.  C.  L,  911 ;  2  Campb.  Rep,  563. 
(it)  2  Stark,  on  Slander  35d, 


552  OFFENCES  AGAINST  SOCIETY. 

disposed  person,  and  being  greatly  disaffected  to  our  said  lord  the 
king,  and  to  his  administration  of  the  government  of  this  kingdom 
and  the  dominions  thereunto  belonging,  and  wickedly,  maliciously 
and  seditiously  contriving,  devising  and  intending  to  stir  up  and  excite 
discontent  and  sedition  among  his  majesty's  subjects,  and  to  alienate 
and  withdraw  the  affection,  fidelity  and  allegiance  of  his  majesty's 
subjects  from  his  said  majesty,  and  to  insinuate  and  cause  it  to  be 
believed  that  divers  of  his  said  majesty's  innocent  and  deserving  sub- 
jects had  been  inhumanly  murdered  by  his  said  majesty's  troops  in 
the  province,  colony  or  plantation  of  the  Massachusetts  Bay  in  New 
England,  in  America,  belonging  to  the  crown  of  Great  Britain,  and 
unlawfully  and  wickedly  to  seduce  and  encourage  his  majesty's  sub- 
jects in  the  said  province,  colony  or  plantation  to  resist  and  oppose 
his  said  majesty's  government,  on,  &c.,  with  (/)  force  and  arms  Sit,{m) 
&c.,  wickedly,  malicionsly(;z)  and  seditiously  did  write  and  pub- 
lish,(o)  and  cause  and  procure  to  be  written  and  published,  a  certain 
false, (/))  wicked,  malicious,  scandalous  and  seditious  libel, (^)  of  and 
concerning  his  said  majesty's  government  and  the  employment  of  his 
troops,  according  to  the  tenor  and  efrect(r)  following : 

"  King's  Arms  Tavern,  Cornhill,  June  7,  1775. 

"At  a  special  meeting  this  day  of  several  members  of  the  Consti- 
tutional Society,  during  an  adjournment,  a  gentleman  proposed  that 
a  subscription  should  be  inmiediately  entered  into  by  such  of  the 
members  present  who  might  approve  the  purpose,  for  raising  the  sum 
of  one  hundred  pounds,  to  be  applied  to  the  relief  of  the  widows, 
orphans  and  aged  parents  of  our  beloved  American  fellow  subjects, 
who,  faithful  to  the  character  of  Englishmen,  preferring  death  to 
slavery,  were  for  that  reason  only,  inhumanly  murdered  by  the  king's 
(meaning  his  majesty's)(5)  troops  at  Lexington  and  Concord  in  the 
province  of  Massachusetts  (meaning  the  said  province,  colony  or 
plantation  of  the  Massachusetts  Bay  in  New  England,  in  America), 
on  the  nineteenth  of  last  April;  which  sum  being  immediately  col- 
lected, it  was  thereupon  resolved,  that  Mr.  H.  (meaning  himself  the 
said  J.  n.),  do  pay  to-morrow  into  the  hands  of  Messrs.  B.  and  C.  on 
account  of  Dr.  F.,  the  said  sum  of  one  hundred  pounds;  and  that 
Dr.  F.  be  requested  to  apply  the  same  to  the  above  mentioned  pur- 
pose:  J.  H."  (meaning  himself  the  said  J.  H.) ;  in  contempt  of  our 
said  lord  the  king,  in  open  violation  of  the  laws  of  this  kingdom,  and 
against,  &c.     (Conclude  as  in  book  1,  chap.  3). 

Second  count. 

That  the  said  J.  H.,  being  such  person  as  aforesaid,  and  again  un- 

il)  This  allegation  is  unnecessary;  see  7  T.  R.  4;  2  Stark,  on  Slander  359. 

(m)  As  to  tlie  venue,  see  2  Stark,  on  Slander  .302;  ib.  35!). 

(n)  As  to  this  averment,  see  2  Stark,  on  Slander  303  ;  ib.  359  ;  Sty.  392  ;  1  Vin.  Ab.  33. 

(o)  Supra,  1  Stark,  on  Slander  358 ;  Baldwin  ».  Elphinstone,  Bla.  R.  1037  j  2  Stark,  on 
Slander  359. 

( p)  This  allegation  need  not  be  proved  ;  sec  7  T.  R.  4;  and  supra,  2  Stark,  on  Slander 
303 ;  ib.  359. 

(9)  See  I  Stark,  on  Slander  358  ;  2  Stark,  on  Slander  359. 

(r)  See  I  Stark,  on  Slander  3G4  ;  2  Stark,  on  Slander  .359. 

(»)  As  to  the  nature  and  use  of  an  innuendo,  see  1  Stark,  on  Slander  418;  2  Stnrk.  oa 
Slander  359. 


LIBEL.  553 

lawfully,  wickedly,  maliciously  and  seditiously  devising,  contrivina: 
and  intending  as  aforesaid,  afterwards,  to  wit,  on,  &.C.,  with  force  and 
arms  at,  &:c.,  wickedly,  maliciously  and  seditiously  printed  and  pub- 
lished, and  caused  and  procured  to  be  printed  and  published,  in  a 
certain  newspaper  entitled  "The  Morning  and  London  Advertiser," 
a  certain  other  false,  wicked,  scandalous,  malicious  and  seditious 
libel,  of  and  concerning  his  said  majesty's  government  and  the  em- 
ployment of  his  troops,  according  to  the  tenor  and  effect  following, 
that  is  to  say,  {setting  out  the  libel  and  conclude  as  before). 

Third  and  Fourth  counts.  For  publishing  tlie  same  in  other  neirs- 
papers. 

Fifth  cormt. 

Wickedly,  maliciously  and  seditiously  did  print  and  publish,  and 
cause  and  procure  to  be  printed  and  published,  a  certain  other  false, 
wicked,  malicious,  scandalous  and  seditious  libel,  of  and  concerning 
his  said  majesty's  government  and  the  employment  of  his  troops, 
according  to  the  tenor  and  effect  folio wmg,  that  is  to  say,  {as  before). 

Sixth  count.    For  printing  and  publishing  the  former  part  of  the  libeL 

Seventh  count. 

That  the  said  J.  H.  being,  &c.,  and  again  unlawfully,  wickedly, 
maliciously  and  seditiously  contriving,  devising  and  intending,  as 
aforesaid,  afterwards,  to  wit,  on,  &c.,  with  force  and  arms  at,  &c., 
wickedly,  maliciously  and  seditiously  did  write  and  publish,  and 
cause  and  procure  to  be  written  and  published,  a  certain  fa'se,  wicked, 
scandalous,  malicious  and  seditious  libel,  of  and  concerning  his  said 
majesty's  government  and  the  employment  of  his  troops,  according 
to  the  tenor  and  effect  following  :  "  I  (meaning  himself  the  said  J.  H.) 
think  it  proper  to  give  the  unknown  contributor  this  notice,  that  I 
(again  meaning  himself  the  said  J.  H.)  did  yesterday  pay  to  Messrs. 
B.  and  C.  on  the  account  of  Dr.  F.,  the  sum  of  fifty  pounds,  and  that 
I  (again  meaning  himself  the  said  J.  H.)  will  write  to  Dr.  F.,  request- 
ing him  to  apply  the  same  to  the  relief  of  the  widows,  orphans  and 
aged  parents  of  our  beloved  American  fellow  subjects,  who,  faithful 
to  the  character  of  Englishmen,  preferring  death  to  slavery,  were,  for 
that  reason  only,  inhumanly  murdered  by  the  king's  (meaning  his 
said  majesty's)  troops,  at  or  near  Lexington  and  Concord,  in  the  pro- 
vince of  Massachusetts  (meaning  the  said  province,  colony  or  planta- 
tion of  the  Massachusetts  Bay,  in  New  England  in  America),  on  the 
nineteenth  of  last  April :  J,  H."  (again  meaning  himself  the  said  J, 
H.     {Conclusion  as  before).{t) 

{For  sedition  generally,  see  post,  "Treason,'') 

Libel  on  the  president  of  the  United  Slates.{u) 

That  T.  C,  late,  <fec.,  being  a  person  of  a  wicked  and  turbulent  dis"- 
position,  designing  and  intending  to  defame  the  president  of  the  Unit- 

(t)  The  original,  see  Cowp.  683,  contains  other  counts  stating  the  printing  and  publish- 
ing of  the  hitter  libel  in  different  newspapers,  and  also  the  publishing  of  both  on  diSeient 
■days;  2  Stark,  on  Slander  361. 

(u)  This  was  the  iiulictuunit  in  the  celebrated  Case  in  which  Dr.  Thomas  Coopcf  was 
convicted  in  IdJU,  and  which  afterwards  became  the  cause  of  considerable  political  con- 
47 


554  OFFENCES  AGAINST  SOCIETY. 

ed  States  and  to  bring  him  into  contempt  and  disrepnte  and  to  excite 
against  him  the  iiatred  of  the  good  people  of  the  United  States,  on, 
&c.,  at,  &,c.,  and  within  the  jurisdiction  of  this  court,  wickedly  and 
maliciously  did  write,  print,  utter  and  publish  a  false,  scandalous  and 
malicious  writing  against  the  said  president  of  the  United  States,  of 
the  tenor  and  effect  following,  that  is  to  say:  Nor  do  I  (himself  the 
said  T.  C.  meaning)  see  any  impropriety  in  making  this  request  of 
Mr.  Adams  (meaning  John  Adams,  Esq.,  President  of  the  United 
States)  at  that  time  ;  lie  (the  said  president  of  the  United  States  mean- 
ing) liad  just  entered  into  office ;  he  (meaning  the  said  president  of 
the  United  States)  was  hardly  in  the  infancy  of  political  mistake  ;  even 
those  \vho  doubted  his  capacity  (meaning  the  capacity  of  the  said 
president  of  the  United  States)  thought  well  of  his  (meaning  the  said 
president  of  the  United  States)  intentions.  And  also  the  false,  scan- 
dalous and  malicious  words  ot'  the  tenor  and  eifect  following,  that  is 
to  say:  Nor  were  we  (meaning  the  people  of  the  United  States)  yet 
saddled  with  the  expense  of  a  permanent  navy,  or  threatened  under 
his  (meaning  the  said  president  of  the  United  States)  auspices  with 
the  existence  of  a  standing  army.  Our  credit  (meaning  the  credit  of 
the  Umted  States)  was  never  yet  reduced  so  low  as  to  borrow  money 
at  eight  per  cent,  in  time  of  peace,  while  the  unnecessary  violence  of 
official  ex[)ressions  might  justly  have  provoked  a  war. 

And  also  the  false,  scandalous  and  malicious  words  of  the  tenor 
and  efiect  following,  that  is  to  say:  Mr.  Adams  (meaning  the  said 
president  of  the  United  States)  had  not  yet  projected  his  (the  said 
president  of  the  United  States  meaning)  embassies  to  Prussia,  Russia 
and  the  Sublime  Porte,  nor  had  he  (the  said  president  of  the  United 
States  meanujg)  yet  interfered  as  president  of  the  United  States  to 
influence  the  decisions  of  a  court  of  justice — a  stretch  of  authority 
which  the  monarch  of  Great  Britain  would  have  shrunk  from — an 
interference  without  precedent,  against  law  and  against  money.  This 
melancholy  case  of  Jonathan  Robbins,  a  native  citizen  of  America, 
forcibly  impressed  by  the  British  and  delivered  up  with  the  advice  of 
Mr.  Adams  (meaning  the  said  president  of  the  United  States)  to  the 
mock  trial  of  a  British  court  martial,  had  not  yet  astonished  the 
republican  citizens  of  this  free  country  (meaning  the  United  States  of 
America) — a  case  too  li-tile  known,  but  of  which  the  people  (meaning 
the  people  of  the  said  United  States)  ought  to  be  fully  apprized  before 
the  election,  and  they  shall  be,  to  the  great  scandal  of  the  president 
of  the  United  States,  to  the  evil  example  of  others  in  the  like  case 
ortending,  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Another  form  for  same.{v) 

That  II.  C,  late,  &-c.,  being  a  malicious  and  seditious  man,  of  a 
depraved  mind  and  wicked  and  diabolical  disposition,  and  also  de- 
tention. It  was  prepared  by  Mr.  Rawie,  and  stood  the  tost  of  very  active  senitiny.  Of 
course  siricc^  the  repeal  of  the  sedition  law,  llie  otTence  is  no  lonjLTor  eo^rnizablc  in  the  fede- 
ral courts;  but  the  jjreceilent  may  be  of  use  in  iiidiclinetits  at  common  law  in  the  .states. 

(e)  People  ti.  ('roswell,  .3  Johns.  3.37.  In  consequence  of  the  equal  division  of  the  Su- 
preme Court  of  New  York  on  the  great  questions  involved  in  this  case,  no  judgment  was 


LIBEL.  555 

ceitfully,  wickedly  and  maliciously  devising,  contriving  and  intending 
T.  J.,  Esq.,  President  of  the  Uinted  States  of  An:ieric:i,  to  detract 
from,  scandalize,  traduce,  vilify,  and  to  represent  him  the  said  T.  J. 
as  unworthy  the  confidence,  respect  and  attachment  of  the  people  of 
the  United  States,  and  to  alienate  and  withdraw  from  the  said  T.  J., 
Esq.,  president  as  aforesaid,  the  obedience,  fidelity  and  allegiance  of 
tlie  citizens  of  the  State  of  New  York,  and  also  of  the  said  United 
States;  and  wickedly  and  seditiously  to  disturb  the  peace  and  tran- 
quillity, as  well  of  the  people  of  the  State  of  New  York,  as  of  the 
United  States;  and  also  to  bring  the  said  T.  J.,  E^q.  (as  much  as  in  liim 
the  said  H.  C.  lay)  into  great  hatred,  contempt  and  disgrace,  not  only 
with  the  people  of  the  State  of  New  York  and  the  said  people  of  the 
United  States,  but  also  with  the  citizens  and  subjects  of  other  nations; 
and  for  that  purpose  the  said  H.  C.  did,  on,  &c.,  at,  &c.,  wickedly, 
maliciously  and  seditiously  print  and  publish,  and  cause  and  procure 
to  be  printed  and  published,  a  certain  scandalous,  malicious  and  sedi- 
tious libel,  in  a  certain  paper  or  (and?)  publication  entitled  "The 
Wasp;"  containing  therein,  among  other  things,  certain  scandalous, 
malicious,  inflammatory  and  seditious  matters,  of  and  concerning  the 
said  T.  J,,  Esq.,  then  and  yet  being  president  of  the  United  States  of 
America,  that  is  to  say,  in  one  part  thereof,  according  to  the  tenor 
and  effect  following,  that  is  to  say :  He  (the  said  T.  J.,  Esq.,  meaning) 
paid  C.  (meaning  one  J.  T.  C.)  for  calling  Washington  (meaning  G. 
W.,  Esq.,  deceased,  late  president  of  the  said  United  States)  a  traitor, 
a  robber  and  a  perjurer;  for  calling  Adams  (meaning  J.  A.,  Esq.,  late 
president  of  the  said  United  States)  a  hoary  headed  incendiary,  and 
for  most  grossly  slandering  the  private  characters  of  men  whom  he 
(meaning  the  said  T.  J.)  well  knew  to  be  virtuous;  to  the  great  scan- 
dal and  mfamy  of  the  said  T.  J.,  Esq.,  President  of  the  said  United 
States,  in  contempt  of  the  people  of  the  said  State  of  New  York,  in 
open  violation  of  the  laws  of  the  said  state,  to  the  evil  example,  &c., 
and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Libel  upon  a  senator  of  the  United  States.{vi) 

That  T.  L.,  of,  &c.,  being  a  person  regardless  of  the  integrity  and 
patriotism,  which  the  citizens  of  this  commonwealth  and  of  the  United 
States,  when  elected  to  and  entrusted  with  offices  of  honour,  trust  and 
responsibility,  in  the  administration  of  the  government  of  this  com- 
monwealth and  of  the  Uniied  States,  ought  to  possess  and  sustain, 
and  unlawfully  and  maliciously  devising  and  intending  to  traduce, 
vilify  and  bring  into  contempt  and  detestation  one  D.  W.,  of,  &.C.,  who 
was,  on  the  day  hereafter  mentioned,  and  still  is  one  of  the  senators 
in  the  congress  of  the  United  States  of  America  for  the  Slate  of  Mas- 
sachusetts, duly  and  constitutionally  elected  and  appointed  to  that 

entered  on  the  indictment;  but  its  correctness  as  a  precedent  is  established  by  the  fact 
that  it  wMs  drawn  by  Mr.  Ainbrose  Spencer,  one  of  the  most  acute  and  accomplished 
pleaders  of  the  d;iy,  and  that  no  technical  exception  was  taken  to  it  by  Mr.  Hamilton.  At 
the  same  time,  I  apprehend  the  passage  in  italics  is  suri)hisage,  and  that  the  "or"  in  the 
16th  line  from  the  bottom  hud  belter  be  changed  to  "and." 
\w)  Davis'  Free.  161. 


556  OFFENCES  AGAINST  SOCIETY. 

office,  and  also  iinlavvfally  and  maliciously  intending  to  insinuate  and 
cause  it  to  be  believed,  that  the  said  D.  VV.  and  divers  other  distin- 
guished and  patriotic  citizens  of  this  commonwealth  had  been  engaged 
in  an  atrocious  and  treasonable  plot  to  dissolve  the  union  of  the  said 
United  States,  then  and  still  constituting  the  government  of  the  said 
United  States  vmder  the  present  constitution  thereof,  and  further  ma- 
liciously intending  to  make  it  to  be  believed,  that  J.  Q.  A.,  then  the 
president  of  the  United  States,  had  denounced  the  said  D.  W.  as  a 
traitor  to  his  country,  on,  &c.,  at,  &c.,  unlawfully,  deliberately  and 
maliciously  did  compose,  print  and  publish,  and  did  cause  and  procure 
to  be  composed,  printed  and  published  in  a  certain  newspaper  called 
the  "Jackson  Republican,"  of  and  concerning  liim  tlie  said  D.  W., 
an  unlawful  and  malicious  libel,  according  to  the  purport  and  effect, 
and  in  substance  as  follows,  that  is  to  say,  {here  insert  the  libellous 
publication,  with  all  necessary  innuendoes  and  ave?'7nents) ;  to  the 
great  injury,  scandal  and  disgrace  of  the  said  D.  W.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Libel  on  a  judge  and  jury  irJien  in  the  execution  of  their  duties.{x) 

That  heretofore,  to  wit,  at  the  sittings  at  Nisi  Prius,  holden  on,  &c., 
at,  &c.,  before  the  right  honourable  Sir  Frederic  Pollock,  chief  baron 
of  our  said  lady  the  queen,  of  her  Court  of  Exchequer  at  Westminster 
aforesaid,  a  certain  issue  duly  joined  in  the  said  court,  between  one 
A.  B.  and  one  C.  D.,  in  a  certain  action  on  promises  in  which  the  said 
A.  B.  was  plaintiff  and  the  said  C.  D.  defendant,  came  on  to  be  tried  in 
due  form  of  law,  and  was  then  and  there  tried  by  a  certain  jury  of  the 
country,  in  tliat  behalf  duly  sworn  and  taken  between  the  parties 
aforesaid. 

And  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  further  pre- 
sent, that  J.  S.,  late,  &.c.,  being  a  wicked  and  ill-disposed  person, 
wickedly  and  maliciously  contriving  and  intending  to  bring  the  ad- 
ministration of  justice  in  this  kingdom  into  contempt,  and  to  scandalize 
and  vilify  the  said  Sir  F.  P,  and  the  jurors  by  whom  the-  said  issue 
was  so  tried  as  aforesaid,  and  to  cause  it  to  be  believed  that,  (here 
state  the  effect  of  the  libel),  on,  &e.,  with  force  and  arms  at,  &c., 
wickedly  and  maliciously  did  write  and  publish,  and  cause  and  pro- 
cure to  be  written  and  published,  a  certain  false,  wicked,  malicious 
and  scandalous  libel,  of  and  concert)ing  the  administration  of  justice 
in  this  kingdom,  and  of  and  concerning  the  trial  of  the  said  issue,  and 
of  and  concerning  the  said  Sir  ¥.  P.  and  the  jurors  by  whom  the  said 
issue  was  so  tried  as  aforesaid,  according  to  the  tenor  and  effect  fol- 
lowing, that  is  to  say,  {here  set  out  the  libel,  together  with  such  in- 
nuendoes as  may  be  requisite),  to  the  great  scandal  and  reproach  of 
the  administration  of  justice  in  tliis  kingdom,  in  contempt  of  our  lady 
the  queen  and  her  laws,  to  the  evil  example,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chop.  3). 


(x)  Arch.  C.  P.  5th  Am.  ed,  G95 ;  see  R.  v.  WhUo»  I  Campb.  359;  R.  v.  Watson,  2  T, 
R.  J  99. 


LIBEL.  So? 

Libel  on  a  sheriff,  allrihuting  to  him  improper  motives  and  conduct,  in 
gelling  up  petitions,  dfC,  for  the  locating  of  the  seat  of  justice  in  a 
particular  county. {y) 

That  A.  B.,  on,  &c.,  at,  &c.,  being  a  person  of  an  envions  and  evil 
and  wicked  mind,  and  wickedly,  maliciously  and  unlawfully  co,ntriv- 
ing  and  intending,  as  much  as  in  him  lay,  to  injure,  oppress  and  vilify 
the  good  name,  fame,  credit  and  reputation  of  a  certain  T.  W.,  a  good 
citizen  of  this  commonwealth,  and  sheriffof  the  County  of  Cabell,  and 
to  bring  him  into  contempt,  infamy  and  disgrace,  and  to  represent 
him  as  a  corrupt  officer,  &.C.,  a  certain  scandalous  and  libellous  writ- 
ing maliciously  and  scandalously  did  write  and  publish,  and  then,&c., 
did  cause  to  be  written  and  published,  in  the  form  of  a  petition  ad- 
dressed to  the  honourable  the  speaker  and  members  of  the  general 
assembly  of  this  commonwealth,  in  which  said  libel  are  contained 
divers  scandalous,  scurrilous  and  malicious  matters,  according  to  the 
tenor  following:  "  That  the  said  T,  W.,  being  desirous  of  having  it 
(meaning  the  seat  of  justice  for  Cabell  county),  on  his  own  plantation, 
where  it  was  first  held,  has,  and  now  is  circulating  a  petition  in  this 
county,  addressed  to  your  honourable  body  for  tiiat  purpose.  Your 
petitioners  beg  leave  to  state,  that  the  said  T.  W.  is  actuated  only  by 
selfish  and  interested  motives,  and  is  by  no  means  governed  by  a  de- 
sire for  the  promotion  of  the  convenience  and  welfare  of  a  majority 
of  the  people  of  this  county;  that  the  place  he  proposes  is  on  his  own 
land,  and  that  it  is  not  only  rendered  almost  inaccessible  by  reason  of 
the  hills  and  mountains  surrounding  it,  but  is  not  near  the  centre  of 
population  or  territory,  so  that  it  is  among  the  most  inconvenient 
places  that  could  possibly  be  thought  of,  and  that  the  said  T.  W.  uses 
base  and  dishonourable  means  to  forward  his  views,  for  that  he  being 
high  sheriffof  this  county,  and  of  course  has  the  collection  of  the  pub- 
lic revenue  and  taxes,  he  persuades  ignorant  and  illiterate  men  to 
sign  his  petition,  frequently  stating  that  for  so  doing  he  will  indulge 
them  a  lime,  and  not  be  over-strenuous  in  his  collections;  that  the 
people  of  this  county  are  generally  poor,  and  as  there  is  very  little 
money  in  circulation  among  them,  an  indulgence  of  this  kind  is  to 
them  a  great  favour;  that  the  said  T.  W.  does  not  present  his  petition 
at  any  public  collection  of  the  people,  when  the  merits  of  it  might  be 
inquired  into  and  discussed,  but  [)rocures  signers  to  it,  as  he  rides 
through  the  county,  in  his  otiice  of  sheriff,  in  secret  and  hidden 
places,"  to  the  great  scandal  and  damage  of  the  said  T.  W.,  to  the 
evil  example,  &.C.,  and  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Libel  on  a  justice  of  the  Police  Court  in  Boston,  SijC. 

That  B.  \V.,  Esq.,  on,  &c.,  at,  &c.,  was  one  of  the  justices  of  the 
Police  Court  and  Justices'  Court  for  the  County  of  Suflblk,  and  acting 
as  senior  justice  of  the  Police  Court,  and  that  W.  J,  S.,  labourer,  on, 
&c.,  at,  &c.,  being  an  evil  disposed  person,  and  unjustly  and  unlavv- 

(y)  Com.  V.  Morris,  1  Va.  Cases  176. 
47* 


558  OFFENCES  AGAINST  SOCiETY^ 

fully  devising,  contriving  and  intending,  as  much  as  in  him  the  satd  W. 
J.  S.  lay,  to  defame,  asperse,  scandalize  and  vilify  the  character  of  the 
said  B.  W.,  Esq.,  and  to  insinuate  and  cause  it  to  be  believed  that  the 
said  B.  W.  had  been  guilty  of  gross  misconduct  in  his  said  otiice  of 
justice  of  the  Police  Court  as  aforesaid,  did  unlawfully  and  mali- 
ciously, wickedly  and  scandaloitsly,  compose,  write,  print  and  publish, 
and  did  cause  and  procure  to  be  composed,  written,  printed  and  pub- 
lished, in  a  certain  public  new\spaper,  entitled  the  New  England 
Galaxy,  a  certain  false,  wicked,  mischievous  and  scandalous  libel 
[of  and  concerning  said  B.  W.,  and  of  and  concerning  his  official  con- 
duct in  said  otiice  of  justice  of  the  Police  Court,  and  of  and  concerning 
the  administration  of  the  public  justice  of  said  Police  Court,  whilst  he 
said  B.  W.  v/as  presiding  and  sitting  therein  as  one  of  the  justices  of 
said  court),  which  said  wicked,  mischievous  and  scandalous  libel  is  to 
the  tenor  and  etl'ect  following,  that  is  to  say  :  "  After  two  days  and 
nights'  consideration,  we  now  sit  down  in  order  to  give  Mr.  VV.  an 
opportunity  ta  see  how  he  stands  in  the  opinion  of  great  and  small. 
We  accuse  him  of  disgracing  his  office,  of  perverting  the  law,  which, 
bad  as  it  is,  is  yet  worse  in  such  hands;  of  doing  injustice  to  his  seat ; 
of  descending  from  his  official  dignity;  of  suffering  his  personal  feel- 
ing to  interfere  with  the  discharge  of  his  functions,  &c.  We  do  not 
pretend  that  we  have  related  all  of  the  above  conversation  witli  minute 
accuracy,  or  that  we  may  not  have  forgotten  some  trivial  circum- 
stances;  but  that  it  is  correct  in  substance  we  pledge  our  sacred 
honour,  and  would  pledge  our  life,  if  it  could  be  pledged.  Let  judge 
W.  choke  a  week  or  so  on  this  pill"  (meaning  said  libel),  "and  we 
have  one  oc  two  more  as  hard  to  swallow  in  reserve'^'  (meaning  that 
he,  said  S.,  had  one  or  two  more  libels  on  said  W.  in  reserve  for  future 
publication).  "  These,  bitter  as  they  are,  are  not  the  words  of  pas- 
sion, but  the  deliberate  expression  of  our  conviction  respecting  the 
duty  we  owe  to  ourself  and  our  country.  We  think  wq  shall  do  ser- 
vice to  God  and  man  by  removing  this  unjust  magistrate  from  the 
seat  he  disgraces"  (meaning  that  said  W.,  in  the  discharge  of  his  offi- 
cial duty  as  one  of  the  justices  of  said  Police  Court,  was  an  unjust 
judge,  and  that  he  disgraced  said  office  by  illegal  and  unjust  conduct, 
that  he  ought  to  be  impeached  of  crimes  and  misdemeanors,  and 
ought  to  be  removed  and  degraded  from  his  office  ;  and  that  so  enor- 
nious  and  iniquitous  were  his  acts,  doings,  conduct  and  behaviour  in 
his  said  otiice  as  one  of  the  justices  of  the  Police  Court  as  aforesaid, 
that  in  consequence  of  their  enormity  and  iniquity,  it  would  be  doing 
service  to  God  and  man  to  have  him,  said  W.,  removed  from  said 
office)],  to  the  great  damage  and  infamy  of  tiie  said  W.,  to  the  great 
scandal  and  dishonour  of  public  justice,  to  the  evil  example,  &c., 
against,  (fee,  and  contrary,  &c.(z)    {Conclude  as  in  book  1,  chap.  3). 


(«)  The  part  m  brackets  of  this  form  is  drawn  from  Com.  tn  SncIIing,  l.*}  Pick.  321. 
The  only  (jiicMtion  raised  on  the  indictment  was  on  tlie  propriety  of  the  innuendoes.  There 
was  no  cxfiress  averment  that  the  libel  was  of  and  conrerninir  the  removal  oi"  W.  from 
ofiice  iiy  inipcachment.  It  was  held  that  the  first  imiuciido  did  not  cnl,ir<re  the  mcnninfr  of 
the  words  of  tlic  libel  ;  and  that  even  if"  the  second  innncMido  did  so  (which  it  was  said  it  did 
not\  it  mi;.rhl  be  njcetrd  as.  surplusajije,  the  words  nt'  the  libel  bciii^r  iti  tii(-ii!si.lved  auili- 
cienl  to  suatuiii  the  indictment.     J'udjimcut  was  catered  atiainiri' llie  defeudant. 


•LIBEL.  559 

LUiel  on  an  nfllcer,  said  libel  consisting  of  a  paper  alleged  to  have  been 
read  by  the  defendant  at  a  public  meeting,  hut  ichich  uas  in  the 
defendant's  possession,  or  destroyed,  and  consequently  ivas  not' pro- 
duced to  the  grand  jury. {a) 

That  A.  B.,  late,  &c.,  on,  &c.,  at,  &c.,  and  within  the  jurisdiction 
of  the  said  court,  being  a  person  of  evil  mind  and  disposition,  and 
wickedly  and  maliciously  devising  and  intending  to  bring  contempt, 
discredit  and  dishonour  on  the  administration  of  public  justice  in  the 
said  city  and  county,  to  deprive  C.  D.  (the  said  C.  D.  being,  &c.)  of 
his  good  name,  fame  and  reputation,  as  well  as  unjustly  to  sub- 
ject him,  the  said  C.  D.,  to  iiigh  pains  and  penalties,  unlawfully, 
wickedly  and  maliciously  did  publish  and  compose,  and  cau>se  and 
procure  to  be  composed  and  published,  a  certain  false,  scandalous 
and  malicious  libel,  of  and  concerning  the  said  C.  D.,  in  his  office 
as  aforesaid;  the  words  and  tenor  o.f  which  said  libel  are  to  this 
inquest  unknown,  by  reason  that  the  said  A.  B.  having  the  said  libel 
in  his  possession  and  custody,  hath  altogether  refused,  and  still  re- 
fuses to  produce  the  same,  or  to  permit  the  same  ta  be  inspected  by 
this  inquest,  although  thereto  often  requested,  to  wit,  by  the  attorney- 
general  of  this  commonwealth,  after  the  publication  of  the  said  libel,. 
and  at  and  before  the  sittings  of  this  inquest,  which  said  libel  con- 
tained among  other  things,  words  of  the  substance  and  effect  follow- 
ing, that  is  to  say,  {here  follaws  libellous  mutter),  to  the  great 
damage,  injury  and  disgrace  of  the  said  A.  B,,  to  the  great  discredit 
and  dishonour  of  public  justice  as  aforesaid,  and  against,  &,c.  {Con- 
clude us  in  book  1,  chap.  3). 

Seditious  libel.  The  libellous  matter  consisting  in  an  address  to  the 
electors  of  Westminster,  of  ichich  the  defendant  was.  the  representa- 
tive, charging  the  gqoernment  with  trampling  upon  the  people,  ^'C.{b) 

That  Sir  F.  B.,  late,  &c.,  being  a  seditious,  malicious  and  ill-dis- 
posed person, and  unlawfully  and  maliciously  devising  and  iiuending 
to  raise  and  excite  discontent,  disaffection  and  sedition  among  the  liege 
subjects  of  our  lord  the  present  king,  and  amongst  the  soldiers  of  our 
said  lord  the  king,  and  to  move  and  excite  the  liege  subjects  of  our 
said  lord  the  king  to  hatred  and  dislike  of  the  government  of  this 
realm,  and  to  insinuate  and  cause  it  to  be  believed  by  the  liege  sub- 
jects of  our  said  lord  the  king,  that  divers  of  the  liege  subjects  of  our 
said  lord  the  king  had  been  inhumanly  cut  down,  maimed  and  killed 
by  certain  troops  of  our  said  lord  the  king,  heretofore,  to  wit,  on,  kc, 
at,  (tc,  unlawfully  and  maliciously  did  compose,  write  and  publish, 
and  cause  to  be  composed,  written  and  published,  a  certain  scanda- 
lous, malicious  and  seditious  libel,  of  and  concerning  the  government 
of  this  realm,  and  of  and  concerning  the  said  troops  of  our  said  lord 
the  king,  according  to  the  tenor  and  effect  following,  (that  is  to  say), 

(a)  Com.  V.  Strafford,  Su[).  Ct.  Pa.  Dec.  T.  1845,  No.  39.  This  case  was  tried  before 
Judge  JJuriisidc,  in  1816,  at  the  Supreme  Court,  when  the  indictment  was  said  by  the 
court  to  be  good,  thougli  no  verditt  was  rendered,  there  having  been  a  di.sclaimer  and 
nolle  prtisi-qiii. 

(b)  R.  V.  Biirdett,  4  B.  &  A.  95^  This  was  the  indictment  on  which  Sir  Francis  Bur- 
dctt,  after  a  struggle  of  great  anitnatioji,  was  convicted  uiid  sculeaccd  to  three  iiioulhs' 
ian.^ri.}Onment,  and  a  fine  uf  £  )2UU0. 


5fi0  OFFENCES  AGAINST  SOCIETY. 

"  To  the  electors  of  Westminster;  gentlemen,  on  reading  the  news- 
papers this  morning,  having  arrived  late   yesterday  evening,  I   was 
filled  with  shame,  grief  and  indignation,  at  the  account  of  the  blood 
spilled  at  Manchester  ;  this  then  is  the  answer  of  the  borough-mon- 
gers to  the  petitioning  people,  this  the  practical  proof  of  our  standing 
in  no  need  of  reform,  these  the  practical  blessings  of  our  glorious 
borough-mongers'  domination,  this  the  use  of  a  standing  army  in 
time  of  peace.     It  seems  our  fathers  were  not  such  fools  as  some 
would  make  us  believe,  in  opposing  the  establishment  of  a  standing 
army,  and  sending  King  William's  Dutch  guards  out  of  the  country. 
Yet  would  to  Heaven   they  had  been  Dutchmen,  Switzers  or  Hes- 
sians, or  Hanoverians,  or  anything  rather  than  Englishmen,  who 
did  such  deeds.    What!  kill  men  unarmed,  um'esisting!  and,  gracious 
God,  women  too,  disfigured,  maimed,  cut  down  and  trampled  on  by 
dragoons!  (meaning  the  said  troops  of  our  said  lord  the  king,  and 
meaning  thereby  that  divers  liege  subjects  of  our  said  lord  the  king, 
fiad  been  inhumanly  cut  down,  maimed  and  killed  by  the  said  troops 
of  our  said  lord  the  king).     Is  this  England?    This  a  Christian  land? 
a  land  of  freedom?     Can  such  things  bo  and  pass  by  us  like  a  sum- 
mer cloud,  unheeded?     Forbid  it  every  drop  of  English  blood   in 
every  vein  that  does  not  proclaim  its  owner  bastard.     Will  the  gen- 
tlemen of  England  support  or  wink   at  such   proceedings?     They 
have  a  great  stake  in   their  country.     They  hold  great  estates,  and 
they  are  bound  in  duty  and  in  honour,  to  consider  them  as  retaining 
fees  on  ihe  part  of  their  country,  for  upholding  its  rights  and  liberties; 
surely  they  will  at  length  awake  and  find  they  have  other  duties  to 
perform  besides  following  bullocks  and  planting  cabbages.     They 
never  can  stand  tamely  as  lookers-on,  whilst  bloody  Nerois  rip  open 
iheir  mothers'   womb.     They  nmst  join   the  general  voice,  loudly 
demanding  justice  and  redress,  and  head  public  meetings  throughout 
the  united   kingdom,  to  put  a  stop  in  its  commencement  to  a  reign  of 
terror  and  of  blood  ;   to  atford  consolation  as  far  as  it  can  be  afforded, 
and  legal  redress  to  widows  and  orphans  and  mutilated  victims  of 
this  un[)aralleled  and  barbarous  outrage.     For  this  purpose  I  propose 
that  a  meeting  should  be  called  in  Westminster,  which  the  gentlemen 
of  the  committee  will  arrange,  and  whose  summons  I  will  hold  my- 
self in  r(!adiness  to  attend.     Whether  the  penalty  of  om'  meeting  will 
be  di^ath  by  military  execution,  I  know  not;  but  this  I  know,  a  man 
can  die  biit  once,  and  never  better  than  in  vindicating  the  laws  and 
liberties  of  his  country.     Excuse  this  hasty  address  ;  I  can  scarcely 
tell  what  I  have  written.     It  may  be  a  libel,  or  the  attorney-general 
may  call   it  so  just  as  he  pleases.     When  the  seven   bisho|)S  were 
tried   for  libel,  the   army  of  James  the  Second,  then  encamped  on 
Honnslow  Heath,  for  supporting   nnlifary  power,  gave  three  cheers 
on    hearing    of   their  ac([uiltal.       'I'he   king,  started    at    the    noise, 
asked, '  What's  that?'  <  Nothing,  sir,'  was  the   answer,  <  but  the  sol- 
diers shouting  at  the  acquittal  of  the  seven  bishops.'     '  Do  you  call 
that  nothing?'  replied   the   misgiving  tyrant,  and   shortly  after  abdi- 
cated the  government.     'Tis  true  James  could  not  inflict  torlin'es  on 
his  soldiers — could  not  tear  the  living  fiesh   from   their  bones  with  a 
cat  o'  nine-iails — could  not  iluy   them  alive.     Be  this  as  it  may,  our 


LIBEL.  501 

duty  is  to  meet,  and  '  England  expects  every  man  to  do  his  duty.'  I 
remain  gentlemen,  most  truly  and  faithfully,  your  most  obedient 
servant,  F.  B."  In  contempt  of  our  said  lord  the  king  and  his  laws, 
to  the  evil  example  of  all  others,  and  against,  &c.  [Conclude  as  in 
book  1,  chap.  3). 

Publishing  at  a  time  of  popular  commotion  resolutions  attaching  the  gov- 
ernment as  bloodthirsty,  ^•c.{c) 

That  on,  &c.,  at,  &c.,  ten  thousand  persons  unknown,  with  force 
and  arms,  unlawfully  did  assemble  armed  with  divers  offensive 
weapons,  to  wit,  sticks,  clubs  and  daggers,  bearing  banners  and  flags, 
and  were  then  and  there  making  a  great  noise  and  disturbance,  to 
the  great  terror  and  alarm  of  the  peaceable  subjects  of  our  lady  the 
queen,  and  that  G,  M.  and  J.  H.  S.,  together  with  certain  other  per- 
sons, forming  and  being  a  part  of  the  London  metropolitan  police 
force,  having  theretofore  been  sworn  in  and  then  being  special  con- 
stables of  the  borough  of  Birmingham,  in  pursuance  of  the  statute 
in  such  case  made  and  provided,  did  by  the  order  and  direction  of 
W.  S.,  Esq.,  and  J.  R.  B.,  Esq.,  justices  of  our  said  lady  the  queen, 
assigned  to  keep  the  peace,  disperse,  separate  and  remove  and  cause 
and  procure  to  be  dispersed,  separated  and  removed,  the  said  unlaw- 
ful assembly  of  persons,  and  that  they  the  said  G.  M.  and  J.  H.  S. 
were  together  with  tlie  said  other  persons  forming  part  of  the  metro- 
politan police  force,  then  and  there  acting  in  the  due  execution  of  their 
duty  as  such  special  constables,  in  dispersing  and  causing  to  be  dis- 
persed the  said  unlawful  assembly  of  persons;  and  that  the  defendant 
intending  to  excite  divers  liege  subjects  of  the  queen  to  resist  the 
laws  and  to  resist  the  persons  so  being  part  of  the  metropolitan  police 
force  in  the  due  execution  of  their  duty,  and  to  bring  tlie  said  force 
into  hatred  and  contempt,  and  to  procure  unlawful  meetings,  and  to 
cause  divers  liege  subjects  of  the  queen  to  believe  that  the  laws  of 
this  kingdom  were  unduly  administered,  and  intending  to  disturb  the 
public  peace  and  to  raise  discontent  in  the  minds  of  the  subjects  of 
the  queen,  and  to  raise  and  excite  tumult  and  disobedience  to  the 
laws,  did  publish  a  certain  false,  &c.,  libel,  of  and  concerning  the 
said  persons  so  being  part  of  the  London  metropolitan  police,  and  of 
and  concerning  the  administration  of  law  and  justice  within  this 
realm,  containing  the  false  and  malicious,  scandalous,  seditious  and 
libellous  matter  following,  that  is  to  say  : 

"  Resolutions  unanimously  agreed  to  by  the  general  convention: 

"  Resolved,  1st,  That  this  convention  is  of  opinion  that  a  wanton, 
flagrant  and  unjust  outrage  has  been  made  upon  the  people  of  Bir- 
mingham by  a  bloodthirsty  and  unconstitutional  force  from  London, 
acting  under  the  authority  of  men  who,  when  out  of  office,  sanc- 
tioned and  took  part  in  the  meetings  of  the  people,  and  now,  when 
they  share  in  the  public  plunder,  seek  to  keep  the  people  in  social 
slavery  and  political  degradation. 

"2d.  That  the  people  of  Birmingham  are  the  best  judges  of  their 

(c)  R.  ».  Collins,  9  C.  &  P.  456.  There  was  a  verdict  of  guilty  on  this  count,  before 
Litticdalu  J.  in  ia3y. 


562  OFFENCES  AGAIXST  SOCIETV. 

own  right  to  meet  in  the  Bull-ring  or  elsewhere,  have  their  own  feel- 
ings to  consult  respecting  the  outrage  given  and  are  the  best  judges 
of  their  own  power  and  resources  to  obtain  justice. 

"3d.  That  the  summary  and  despotic  •  arrest  of  Dr.  T.,  our 
respected  colleague,  affords  another  convincing  proof  of  the  absence 
of  all  justice  in  England,  and  clearly  shows  that  there  is  no  security 
for  life,  liberty  or  property,  till  the  people  have  some  control  over 
ihe  laws  they  are  called  upon  to  obey. 

"  By  order,  .     W.  L.,  Sec." 

To  the  great  scandal,  &c.,  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Libel  in  German,  in  the  Circuit  Court  of  the  United  States. (d) 

That  B.  M.  and  C.  F.,  late  of,  &c.,  being  ill-disposed  persons,  de- 
signing and  intending  to  vilify  and  defame  the  government  of  the 
United  States  and  the  administration  of  justice  therein,  and  to  cause 
it  to  be  believed  that  the  judiciary  courts  of  the  said  United  States 
were  actuated  by  unlawful  motives  and  not  by  the  duty  imposed  on 
them  by  the  constitution  of  the  United  States  aforesaid,  and  thereby 
to  weaken  and  diminish  the  authority  of  tlie  said  courts  and  excite 
opposition  against  the  same,  on,  &c.,  at,  &c.,  wickedly  and  maliciously 
did  print  and  publish  and  cause  to  be  printed  and  published,  in  a  cer- 
tain newspaper  then  and  there  printed  in  the  German  language  and 
called  "  Unpartheyische  Harrisbnrg  Zeitung,"  which  German  words 
signify,  "  The  Impartial  Harrisbnrg  Newspaper,"  the  false,  scan- 
dalous, contemptuous  and  malicious  words,  matters  and  things  follow- 
ing, that  is  to  say,  "  Capt.  John  Fries.  Die  constitution  der  Vereinigten 
Staaten  sagt  hochverrath  soil  nur  darein  bestehen  wenn  man  krieg 
gegen.  derselben  erklUret  oder  ihren  feinden  anhanget  und  sie  unter- 
stiitzet,"  which  German  words  signify  "  The  constitution  of  the  United 
States  says  high  treason  shall  consist  only  in  levying  war  against  the 
same  or  in  aiding  or  abetting  their  enemies."  "Dieses  wurde  den 
30sten  April,  1790,  durch  ein  acte  de  congresses  erkliiret  dass  wann 
einise  person  die  zuden  Vereinigten  Staaten  von  America  gehoret 
krieg  gegen  dieselben  erkliiret,  oder  ihren  feinder  anhanget  und 
unter  stutzet  inden,"  &c.  {Here  translate  the  last  written  sentence, 
proceed  with  the  remainder  of  the  libellous  Tnatter,  translating  the 
same  sentence  by  sentence  ivith  proper  innuendoes,  and  conclude), 
in  contempt  of  the  said  United  States  and  the  judicial  courts  thereof, 
to  tlie  great  scandal  and  infamy  of  the  judges  and  jurors  of  the  Cir- 
cuit Court  of  the  said  United  States  in  and  for  the  Pennsylvania  dis- 
trict, to  the  evil  example,  &c.,  and  against,  &c.  {Conclude  as  in 
hook  1,  chap.  3). 

{d)  U.  S.  w.  Mcycr,  Circuit  Court  United  Stales  for  Pennsylvania,  October,  1799,  No.  6. 

A  very  curious  feature  in  the  case  is,  that  tliouifli  the  indictment  docs  not  even  pre- 
tend to  be  for  a  statutory  ofTencc,  the  defendants  "submitted  themselves  to  tlie  judgment 
of  the  court,  protesting?  tlieir  innocence."  So  far  tliercforc  from  its  beiufr  an  understood 
thinj?  in  the  courts  at  the  period,  tliat  tlicrc  arc  no  common  law  ofTenccs  apfainst 
tlie  United  States,  we  find  that  a  scries  of  defendants,  ably  defended,  in  the  midst 
of  a  struiriile  of  yreat  violence  and  ardour,  do  not  even  tiiinit  it  worth  while  to  test  the 
validity  of  an  fjifence  wliich  is  not  only  of  a  strict  common  law  character,  but  to  which 
cvun  llie  "  cuiilra  J'onnain"  is  not  attaciied. 


LIBEL.  563 

Libel  in  French  against  a  foreign  poteniate.{e) 

That  before  and  at  the  times  of  the  printing  and  publication  of  the 
scandalous,  malicious  and  defamatory  libels  and  libellous  matters  and 
things  aftermentioned,  there  subsisted  and  now  subsists  friendship 
and  peace  between  our  sovereign  lord  the  king  and  the  French 
republic  and  the  subjects  of  our-  said  lord  the  king  and  the  citizens  of 
the  said  republic;  and  that  before  and  at  tliose  times,  citizen  N.  B. 
was  and  yet  is  first  consul  of  the  said  French  republic,  to  wit,  at,  &c., 
and  that  J.  P.,  late  of,  &c.,  well  knowing  the  premises  aforesaid,  but 
being  a  malicious  and  ill-disposed  person,  and  unlawfully  and  mali- 
ciously devising  and  intending  to  traduce,  defame  and  vilify  the  said 
N.  B.  and  to  bring  him  into  great  hatred  and  contempt,  as  well 
among  the  liege  subjects  of  our  said  lord  the  king  as  among  the  citi- 
zens of  the  said  republic,  and  to  excite  and  provoke  the  citizens  of 
the  said  republic  by  force  of  arms  to  deprive  the  said  N.  B.  of  his 
consular  olfice  and  magistracy  in  the  said  republic,  and  to  kill  and 
destroy  the  said  N.  B.,  and  also  unlawfully  and  maliciously  devising 
as  much  as  in  [lim  the  said  J.  P.  lay,  to  interrupt,  disturb  and  destroy 
the  friendsliip  and  peace  subsisting  between  our  said  lord  the  king 
and  his  subjects  and  the  said  N.  B.,  the  French  republic  and  the  citi- 
zens of  the  same  republic,  and  to  excite  animosity,  jealousy  and 
hatred  in  the  said  N.  B.  against  our  said  lord  the  king  and  his  sub- 
jects, on  the  sixteenth  day  of  August,  in  the  forty-second  year  of  the 
reign  of  our  sovereign  lord  George  the  Third,  by  the  grace  of  God  of 
the  united  kingdom  of  Great  Britain  and  Ireland  king,  defender  of 
the  faith,  at  the  parish  of  St.  Anne  within  the  liberty  of  Westminster 
in  the  County  of  Middlesex,  unlawfully  and  maliciously  did  print 
and  publish  and  cause  and  procure  to  be  printed  and  j)ublished,  a 
most  scandalous  and  malicious  libel,  in  tlie  French  language,  of  arjd 
concerning  tlie  said  N.  B.,  that  is  to  say,  one  part  thereof  to  the  tenor 
following,  that  is  to  say  : 

"  Le  18  Brumaire.  An.  viii.  Ode  attribuee  a  Chenier. 
"  Quelles  tempetes  effroyables 
Grondent  sur  les  flots  dechaines,"  &c. 
And  in  another  part  thereof  to  the  tenor  following,  that  is  to  say  : 

"  Deja  dans  sa  rage  insolente  ;"  &c. 
Which  said  scandalous  and  malicious  words,  in  the  French  language 
first  above  mentioned  and  set  forth,  being  translated  ijito  the  English 
language,  were  and  are  of  the  same  signification  and  meaning  as 
these  English  words  following,  that  is  to  say,  "What  frightful  tem- 
pests growl  on  the  unchained  waves,"  &c.  And  which  said  scan- 
dalous and  malicious  words  secondly  above  mentioned  and  set  forth, 
being  translated  into  the  English  language,  were  and  are  of  the  same 
signification  and  meaning  as  the  English  words  following,  that  is  to 
say,  "  Already,"  &c.     {Conclude  us  above). 

Second  coiint. 

That  the  said  J.  P.,  so  being  such  person  as  aforesaid,  and  unlaw- 


(e)  2  Stark,  on  Slander  354.     This  was  the  form  used  in  Peltier's  case. 


564  OFFENCES  AGAINST  SOCIETY. 

fully  and  maliciously  devising  and  intending  as  aforesaid,  lo  wit,  on 
the  twenty-sixth  of  August,  in  the  forty-second  year  of  the  reign 
aforesaid,  at  the  parish  of  St.  Anne  in  the  liberty  of  Westminster  in 
the  County  of  Middlesex,  unlawfully  and  maliciously  did  print  and 
publish  and  cause  and  procure  to  be  printed  and  published,  a  certain 
other  scandalous  and  malicious  libel,  containing  therein  among  other 
things,  divers  other  scandalous  and  malicious  matters,  in  the  French 
language,  of  and  concerning  the  said  N.  B.,  in  the  form  of  an  address 
to  the  French  people,  according  to  the  tenor  following,  that  is  to  say, 
'<  Citoyens,"  &c.  Which  said  scandalous  and  malicious  words,  in  the 
French  language  last  before  mentioned  and  set  forth,  being  translated 
into  the  English  language,  were  and  are  of  the  same  signification 
and  meaning  as  these  English  words  following,  that  is  to  say,  "  Citi- 
zens," &c.,  to  the  great  scandal,  disgrace  and  danger  of  the  said  N. 
B.,  to  the  great  danger  of  creating  discord  between  our  said  lord  the 
king  and  his  subjects  and  the  said  N.  B.,  the  French  republic  and  the 
citizens  of  the  said  republic,  in  contempt,  &c.,  to  the  evil  e.^mple, 
&c.,  and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Sending  a  letter  to  a  commissioner  of  revemie  in  the  United  States,  con- 
taining corrupt  proposal s.{f) 

That  whereas,  on  the  thirteenth  day  of  May,  one  thousand  seven 
hundred  and  ninety-four,  it  was  enacted  by  the  Senate  and  House  of 
Representatives  of  the  United  States  of  America,  in  congress  assem- 
bled, {here  set  forth  the  act  of  cojigress,  providing  that  a  beacon 
and  light-house  should  he  constrticted  as  soon  as  the  jurisdiction  of 
sufficient  ground  should  be  ceded  to  the  United  States  by  the  State 
of  North  Carolina);  and  whereas  the  legislature  of  the  State  of  North 
Carolina  did,  on  the  seventeenth  day  of  July,  one  thousand  seven 
hundred  and  ninety-four,  cede  to  the  United  States  the  jurisdiction  of 
so  much  of  the  headland  of  Cape  Hatteras  in  the  same  state,  as  the 
president  of  the  said  United  States  deemed  sufficient  and  most  proper 
for  the  convenience  and  accommodation  of  a  light-house,  and  also  a 
sufficient  quantity  of  land  for  building  on  the  said  island,  in  the  har- 
bour of  Occacock,  called  Shell  Castle,  a  beacon  of  the  kind,  descrip- 
tions and  dimensions  aforesaid  ;  and  whereas,  afterwards,  to  wit,  on, 
&c.,  at,  &c.,  C.  D.,  Esq.  (he  the  said  C.  D.,  then  and  there  being  com- 
missioner of  the  revenue,  in  .the  departtAent  of  the  secretary  of  the 
treasury),  then  and  there  was  appointed  and  instructed  by  the  secre- 
tary of  tlie  treasury,  by  and  with  the  authority  of  the  president  of  the 
said  United  States,  to  receive  proposals  for  building  the  light-house 
aforesaid,  and  beacon  aforesaid,  A.  B.,  late,  &c.,  being  an  ill-disposed 
person,  and  wickedly  contriving  and  intending  to  bribe  and  seduce 
the  said  C.  J).,  so  being  connnissioner  of  the  revenue,  from  the  per- 
formance of  the  trust  and  duty  so  in  liim  reposed,  on,  &c.,  at,  &c.,  and 
within  the  jurisdiction  of  this  court,  wickedly,  advisedly  and  corruptly 
did  compose,  write,  utter  and  publish,  and  cause  to  be  delivered  to 

(/)  U.  S.  V.  Worrell,  2  Dall.  384.  Whatever  may  be  said  as  to  the  jurisdiction  of  tlie 
federal  courts  over  coriitnon  law  offences,  there  can  be  no  doubt  that  as  a  matter  of  plead- 
ing this  indictment  is  good. 


LIBEL.  5f)5 

the  said  T.  C,  a  letter,  addressed  to  him  the  said  C.  D.,  in  the  words 
and  figures  following,  that  is  to  say,  {here  set  forth  the  letter,  and 
conclude) :  to  the  evil  example,  &c.,  and  against,  &c.,  {as  in  book  1, 
^  chap.  3). 

Writing  a  seditious  letter  with  intent  to  excite  fresh  disturbances  in  a 
district  in  a  state  of  insurrection.{g) 

That  whereas  on,  &c.,  in  the  Counties  of  W.  and  A.  in  the  district 
of  Pennsylvania,  certain  wicked,  seditious  and  ill-disposed,  persons 
disaffected  to  tlie  constitution  and  laws  of  the  said  U.  S.,  and  unlaw- 
fully and  seditiously  contriving  and  intending  as  much  as  in  them  lay 
to  resist  the  government  and  defeat  the  laws  of  the  same  U.  S.,  did 
unlawfully  and  seditiously  assemble  and  gather  themselves  together, 
armed  and  arrayed  in  a  warlike  manner,  to  oppose  the  execution  of 
the  laws  of  the  said  U.  S. ;  and  whereas  J.  W.,  Esq.,  on  the  day  and 
year  aforesaid,  he  being  an  associate  judge  of  the  Supreme  Court  of 
the  said  U.  S.,  did  certify  to  the  president  of  the  said  U.  S.,  that  in  the 
said  Counties  of  W.  and  A.  laws  of  the  said  U,  S.  are  opposed  and 
the  execution  thereof  obstructed  by  combinations  too  powerful  to  be 
suppressed  by  the  ordinary  course  of  judicial  proceedings  or  by  the 
powers  vested  in  the  marshal  of  the  district;  and  whereas  the  presi- 
dent of  the  U.  S.  is  required  by  the  constitution  thereof  to  take  care 
that  the  laws  thereof  be  faithfully  executed;  and  whereas  the  presi- 
dent of  the  U,  S.  in  pursuance  of  the  powers  and  duties  in  him  vested, 
did  on,  &c.,  call  forth  the  militia  of  the  State  of  P.  to  suppress  such 
combinations  and  to  cause  the  laws  to  be  duly  executed,  and  at  the 
same  time  the  president  of  the  said  ll.  S.  did  authorize  and  empower 
certain  persons  to  act  as  commissioners  with  the  hope  of  recalling  the 
said  turbulent  and  seditious  persons  to  a  sense  of  their  duty  and  obe^ 
dience  to  the  laws  of  the  said  U.  S.,  which  persons  so  authorized  did 
proceed  to  P.  in  the  execution  of  the  said  powers  and  authority  ;  and 
whereas  in  the  County  of  W.  in  the  district  aforesaid,  certain  turbu- 
lent, ill-disposed  and  seditious  persons  did  unite,  combine  and  confe- 
derate with  the  said  turbulent,  wicked  and  seditious  persons  in  the 
Counties  of  W,  and  A.,  and  did  agree  to  assemble  together  at  P.'s 
ferry  on  the  M.,  on,  &c.,  with  design  further  to  oppose  and  resist  the 
execution  of  the  laws  of  the  Said  U.  S. ;  and  the  grand  inquest  afore* 
said,  upon  their  respective  oaths  and  atfirmations  aforesaid,  further 
do  present,  that  R,  L.,  late  of,  &c.,  yeoman,  being  an  ill-disposed  per- 
son, did  on,  &c.,  in  the  year  aforesaid  in  the  district  aforesaid,  wick- 
edly, maliciously  and  seditiously  write  and  publish  and  send  to  be 
delivered,  a  certain  malicious  and  seditious  letter,(A)  directed  to  a  cer* 
tain  Mr.  William  Moorehead,  near  G.,  the  tenor  of  which  said  writing 
and  letter  is  as  followeth  : 

"  Mr.  VV.  M.,  near  G.  August  ye  26th,  1794. 

"HonourdSr:  as  you  have,  begun  a  good  work  in  that.coutitry, 
(meaning  thereby  the  said  seditious  opposition  to  the  laws  of  the  U. 

ig)  U.  S.  V.  Lusk,  Circuit  Court,  Phil.  1704.  Tins  indicliiient  was  drawn  b}'  Mr.  Rawic, 
in  1794,  but  was  never  tried. 

<h}  See  as  to  setting  out  the  letter  sent,  Resp.  ».  Carlisle,  1  Dall.  35, 
48 


666 


OFFENCES  AGAINST  SOCIETY. 


S.),  we  (himself  the  said  R.  L.  and  other  persons  in  the  said  County 
of  C.  meaning)  wish  to  have  a  hand  in  the  fre  (meaning  that  tlie 
said  R.  and  other  persons  wished  to  unite  with  and  support  the  said 
seditious  opposition  to  the  laws),  as  soon  as  I  seed  your  appoint* 
ment  of  meeting  on  ye  14th  instant  past  (meaning  the  said  meeting 
at  P.),  1  advertised  all  round  about  us  to  meet  on  2d  day,  and  so  we 
liad  a  great  meeting  and  our  resolves  is  in  the  C.  News  Papers,"  &c,; 
{proceeding  with  letter) ;  he  the  said  R.  L.  wickedly,  maliciously 
and  seditiously  intending  by  writing  and  publishing  and  sending  to 
be  delivered  the  said  letter,  to  excite,  encourage  and  promote  as  well 
the  said  William  Moorehead  as  other  persons  in  the  said  Counties 
of  W.,  A.  and  W.,  to  oppose  the  laws  and  resist  the  government  of 
the  said  U.  S.,  to  the  evil  example,  &c.,  in  contempt,  &c.,  and  against, 
&c.     {Conclude  as  in  book  1,  chap.  3). 

Hanging  a  man  in  effigy. (i) 

That  A.  B.,  in  the  county  aforesaid,  unlawfully,  wickedly  and  ma- 
hciously  intending  to  injure  J.  N.,  &c.,  unlawfully,  wickedly  and  ma- 
liciously did  make  and  cause  and  procure  to  be  made,  a  certain  gib- 
bet and  gallows,  and  also  a  certain  effigy  and  figure,  intended  to  repre- 
sent the  said  J.  N.,  and  then  and  there  unlawfully,  wickedly  and 
maliciously  did  erect,  set  up  and  fix,  and  cause  and  procure  to  be 
erected,  set  up  and  fixed,  the  said  gibbet  and  gallows  in  a  certain 
yard  and  place  near  unto  a  certain  common  highway  there  situate, 
called  and  near  to  a  certain  ferry  called  the  Horse  Ferry,  where 

the  said  J.  N.  was  used  and  accustomed  to  ply  in  the  way  of  his  trade 
and  business  of  a  waterman  ;  and  then  and  there  unlawfully,  wickedly 
and  maliciously  did  hang  up  and  suspend,  and  cause  and  procure  to 
be  hung  up  and  suspended,  the  said  etiigy  and  figure,  to  and  upon 
the  said  gibbet  and  gallows,  with  the  name  of  the  said  J.  N.  inscribed 
on  a  piece  of  wood  and  affixed  to  the  said  effigy  and  figure,  together 
with  divers  scandalous  inscriptions  and  devices  upon  and  about  tlie 
same,  reflecting  on  the  character  of  the  said  J. ;  and  did  then  and 
there  keep  and  continue,  and  cause  and  procure  to  be  kept  and  con- 
tinued the  said  gibbet  and  gallows  so  erected  and  set  up  as  aforesaid, 
with  the  said  effigy  and  figure  hung  up  and  suspended  to  and  from 
the  same  as  aforesaid,  together  with  the  several  inscriptions  and  de- 
vices aforesaid,  so  affixed  as  aforesaid,  for  a  long  space  of  time,  to  wit, 
for  the  space  of  four  days  then  next  following,  and  during  all  that 
lime  unlawfully,  wickedly  and  maliciously  did  then  and  there  publish 
and  expose  the  said  gibbet  and  g;illows,  with  the  said  effigy  and  figure 
thereon,  to  the  sight  and  view  of  divers  good  and  worthy  subjects  of 
our  said  lady  the  queen,  passing  and  repassing  in  and  along  the  high- 
way aforesaid;  to  the  great  scandal,  infamy  and  disgrace  of  the  said 
J.  N.,  to  the  evil  example,  &c.,  and  against,  &c.  (Conclude  as  in  book 
I,  chap.  3). 


(i)  AroJi.  C.  P.  5th  Am.  ed.  730. 


LIBEL. 


567 


Insulting  a  justice  in  the  execution  of  his  office.{j) 


That  heretofore,  to  wit,  on,  &c.,  a  special  session  of  the  peace  was 
holden  at,  &c.,  before  certain  justices  of  the  peace  of  our  sovereign 
lady  the  queen  for  the  said  county  of  to  wit,  before  P.  Q.,  R.  S. 

and  X.  Y.,  and  others  their  fellows,  being  justices  as  aforesaid  of  the 
county  of  aforesaid,  who  had  then  and  there  assembled  and 

met  together,  with  purpose  and  intent  to  authorize  and  empower  cer- 
tain persons,  then  and  there  also  assembled  and  attending,  to  keep 
respectively  in  their  respective  parishes  within  the  said  county  of 
certain  common  inns  and  alehouses,  as  by  the  laws  of  this 
realm  the  said  justices  as  aforesaid  were  authorized  and  empowered 
to  do,  at  which  said  session  so  then  and  there  holden  as  aforesaid, 
before  the  justices  above  named,  and  others  their  fellows  as  aforesaid, 
came  A,  B.,  late  of,  &c. ;  and  the  said  A.  }3,,  on  being  then  and  there, 
to  wit,  at  the  said  session  so  holden  as  aforesaid,  before  the  said  jus- 
tices as  atbresaid,  demanded  a  license  from  the  said  P,  Q.,  R,  S,  and 
X.  Y.,  and  others  their  fellows  so  as  before  assembled,  in  order  that 
he  the  said  A.  B.  might  be  authorized  and  empowered,  at  a  certain 
house  known  and  distinguished  by  the  sign  of  the  White  Swan,  at, 
&c.,  to  sell  ale  for  and  during  the  year  next  ensuing;  but  the  said  P.- 
Q.,  R.  S.  and  X.  Y.,  and  others  their  fellows  so  then  and  there  assem- 
bled, being  justices  of  our  said  lady  the  queen  for  the  county  of 
aforesaid,  then  and  there  refused  to  grant  any  leave,  license  or  autho- 
rity to  the  said  A.  B.  to  sell  ale  at  aforesaid,  in  the  county 
aforesaid,  for  the  said  year  then  next  ensuing;  whereupon  the  said 
A.  B.,  wickedly  and  maliciously  intending  to  traduce  the  authority 
and  impede  the  proceedings,  as  well  as  to  vilify  the  characters  of  the 
said  justices,  so  being  then  and  there  in  the  due  and  proper  execution 
of  their  duties,  uttered  and  pronounced,  and  loudly  published  to  the 
said  justices  so  assembled  and  met  together  as  aforesaid,  in  the  pre- 
sence and  hearing  of  divers  of  her  majesty's  liege  subjects,  these  false, 
scurrilous  and  contemptuous  words  of  and  concerning  the  said  P.  Q., 
R.  S.  and  X.  Y.,  and  others  their  fellows,  justices  as  aforesaid  then 
and  there  assembled,  and  of  and  concerning  the  execution  of  their 
said  duties,  that  is  to  say,  "  You  are  all  (meaning  the  said  P.  Q.,  R. 
S.  and  X.  Y.,  and  others  their  fellows,  then  and  there  assembled)  a 
parcel  of  tyrannical  villains,  and  ought  to  be  hanged  for  depriving  a 
j)Oor  man  of  his  bread"  (meaning  that  the  said  P.  Q.,  R.  S.  and  X. 
Y.  and  others  their  fellows,  then  and  there  assembled,  ought  to  be 
hanged  for  depriving  him  the  said  A.  B.  of  his  bread,  by  ret'using  him 
the  said  A.  B.  a  license  to  sell  ale,  which  the  said  A.  B.  had  then  and 
there  required  from  them  the  said  P.  Q.,  &c.,  and  which  they  the  said 
P.  Q.,  R.  S.,  X.  Y.,  and  others  their  fellows,  justices  as  aforesaid,  had 
then  and  there  refused  to  grant  to  him  the  said  A.  B. ;  in  disturbance 
of  the  administration  of  justice,  and  against,  Sic.{k)  {Conclude  as  in 
dock  1,  chap.  3). 

(j)  Dickinson's  Q.  S.  6tii  ed.  393. 

(fc)  Sciintliilous  as[)erBions  of  a  magfistrate  in  the  execution  of  his  office,  are  rco'arded  as 
criminal,  and  subject  the  oft'cndcr  to  punishment,  at  the  discrelion  ot'  the  court  in  which 
he  is  convicted;  Holt  on  Lib.  153 ;  1  Kuss.  C  &  AI.  326.     And  to  these  the  rule  is  strictly 


568  OFFE\CES  AGAINST  SOCIETY. 

For  seditious  icords.{l) 

That  R.  M.,  late  of,  &,c.,  being  a  pernicious  and  seditions  man,  and 
a  person  of  a  depraved  and  disquiet  mind,  and  intending  and  con- 
triving to  terrify  and  discourage  the  good  people  of  this  commonwealth 
from  enlisting  into  the  service  thereof,  and  with  all  his  might  endea- 
vouring to  prevent  the  measures  carrying  on  in  support  of  the  freedom 
and  independence  of  America,  and  to  bring  the  generals  and  other 
military  otficers  of  the  armies  of  the  state  and  of  the  said  United  States 
into  hatred  and  contempt,  and  that  the  said  R.  M.,  his  wicked  con- 
trivances and  intentions  aforesaid  to  perfect  and  render  eifectual,  on, 
&c.,  at,  &c.,  and  within  the  jurisdiction  of  this  court,  in  the  presence 
and  hearing  of  divers  liege  subjects  of  this  commonwealth  having 
discourse  then  and  there  concerning  the  army  of  the  said  United 
States,  and  the  commanders  and  officers  thereof,  falsely,  wickedly  and 
maliciously  and  seditiously,  these  talse,  scandalous  and  malicious  and 
seditions  words,  with  a  loud  voice  did  pronounce  and  say,  to  wit, 
"Tlie  heads  (meaning  the  generals  and  other  military  officers  in  the 
said  army)  of  the  continental  army  are  convicts  and  rogues,  and  all 
those  who  join  (meaning  those  who  enlist  in)  the  army  (the  army  of 
the  said  United  States  meaning),  are  worse  than  fools,  lor  they  (mean- 
ing those  who  should  so  enlist)  will  be  cheated,"  to  the  evil  example, 
Sec,  and  against,  &c.(w)     {Conclude  as  in  book  1,  chap.  3). 

confined;  for  if  the  lang^uage,  however  opprobrious,  apply  to  the  justice  in  his  private  ca- 
pacity, no  indictment  can  be  supported.  So  that  if  a  man  at  a  parish  meeting'  apply  to  an 
absent  magistrate  abusive  names,  as  if  he  say,  "If  lie  is  a  sworn  justice,  he  is  a  rogue  and 
a  forsworn  rogue;"  or  if  he  apply  to  him  the  names  of  an  ass,  fool,  coxcomb  or  blockliead, 
no  indictable  offence  will  have  been  committed;  2  Stra.  1157-8;  2  Salk.  698;  2  Campb.  142, 
And  it  seems  that  to  render  any  words  thus  indictable,  they  must  be  spoken  to  the  niagis- 
trute,  and  not  in  his  absence;  2  Cambp.  142;  2  Stra.  1157;  R.  «.  Read,  1  Stra.  420-1 ;  Dick- 
inson's  Q.  S.  6th  ed.  392. 

(/)  Drawn  by  Mr.  Bradford  in  1780. 

{in)  I  have  been  favoured  with  the  rolls  of  a  few  indictments  used  in  Philadelphia,  in 
1716  and  thereabouts,  several  of  which  relate  to  this  branch  of  pleading.  Two  of  them 
are  inserted  verbatim  et  literatim. 

"The  g-rand  inquest  for  our  lord  the  king,  upon  their  respective  oaths  and  affirmations  do 
present,  that  Andrew  Hamilton,  late  of  tlie  City  of  Philadelphia,  Esq  ,  the  tenth  day  of 
October,  in  tlie  first  year  of  tlie  reign  of  our  lord  George,  by  the  grace  of  God  king  of 
Great  Britain,  France  and  Ireland,  defender  of  the  faith  the  third,  at  tlie  City  aforesaid,  of 
tJie  iionourable  Charles  (Jookin,  Esq.,  Meutenant-govcrnor  of  the  province  of  Pennsylvania, 
then  and  still  being,  the  wicked,  opprobrious  and  reproachful  words  following  did  speak, 
utter  and  [ironounce,  viz.:  Damn  him  (the  said  lieutenant-governor  meaning).  If  he  (the 
said  Hamilton  himself  meaning)  ever  met  the  damned  dog  Gookin  (the  said  lieutenant- 
governor  again  meaning)  out  of  the  province  in  which  the  said  Gookin  had  command,  or 
any  other  convenient  place,  that  by  the  eternal  God  he  (the  said  Hamilton  himself  mean- 
ing) would  pistol  him,  and  that  he  (the  said  lieutenant-governor  again  meaning)  deserved 
ti)  l)e  shot  or  ript  open  for  what  he  (the  said  lieutenant-governor  again  meaning)  had  done 
ahrady,  and  swore  by  CJod  (he  himself  again  nicaning)  he  could  find  the  heart  to  do  it, 
and  would  if  he  ever  had  him  (the  said  liriitrnant-govctnor  again  meaning)  in  a  conve- 
nient place,  to  the  evil  example  of  others  in  like  case  delinquent,  ar)d  against  the  peace  of 
our  faid  lord  the  king,  his  crown  and  dignity." 

"The  grand  inquest  of  our  lord  the  king,  upon  their  respective  oaths  or  affirmations  prc- 
Hents,  that  Hugh  Loudon,  late  of  the  City  of  I'liihuh-lphia,  merchant,  the  tenth  day  of  Sep- 
trml)(  r,  in  the  year  of  the  reign  of  our  lord  (icorge,  by  the  grace  of  God  king  of  Great 
J5;il.iin,  France  and  Ircl.ind,  defender  of  the  fiilli  the  tliird,  at  tlie  City  of  Pliiladdphia,  of 
l.ichard  Hill,  Esq.,  iiK.yor  of  the  city  uibresaid,  and  Jaiiics  Logan,  Esq.,  Socretury  ot'  this 


SEDITIOUS  LANGUAGE.  5GD 

Another  form  for  sume.{n) 

That  N.  B.,  late  of,  &c.,  labourer,  being  a  wicked,  seditious  and 
evil  disposed  person,  and  greatly  disaffected  to  our  said  lord  the  king, 
and  contjiving  and  intending  the  liege  subjects  of  our  said  lord  the 
king,  to  incite  and  move  to  hatred  and  dislike  of  the  person  of  our 
said  lord  the  king,  and  of  the  government  established  within  this 
realm,  on,  &c.,  with  force  and  arms  at,  &c.,  in  the  presence  and 
hearing  of  divers  liege  subjects  of  our  said  lord  the  king,  maliciously, 
unlawfully,  wickedly  and  seditiously  did  publish,  utter  and  declare 
with  a  loud  voice,  of  and  concerning  our  said  lord  the  king,  these 
words  following,  that  is  to  say,  "His  majesty,  George  the  Third 
(meaning  our  said  lord  the  king)  is  *  *  *  *,  thank  God  for  it;  I 
(meaning  the  said  A.  B.)  hope  he  (meaning  our  said  lord  the  king) 
will  soon  be  no  more  ;  damnation  to  all  royalists;"  to  the  great  scan- 
dal of  our  said  lord  the  king,  in  contempt  of  our  said  lord  the  king 
and  his  laws,  to  the  evil  and  pernicious  example  of  all  others  in  the 
like  case  ofTending,  and  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 


province  of  Pennsylvania  (the  said  Richard  Hill  and  James  Logan,  justices  of  the  Court 
of  Common  Pleas  for  the  City  and  County  of  Philadelphia  then  and  still  being),  the  wicked, 
opprobrious  and  reproachful  words  following,  openly  and  publicly  did  speak,  utter  and 
pronounce,  viz.:  that  lie  (himself  meaning)  was  wronged  by  the  judgments  of  court  in 
two  bonds  (the  Court  of  Common  Pleas  held  for  the  City  and  County  of  Philadelphia  the 
aforesaid  tenth  day  of  September  meaning),  and  that  Richard  Hill  and  James  Logan  (the 
said  Richard  Hill  and  James  Logan,  who  were  two  of  the  justices  of  the  said  court  who 
gave  the  said  judgment  against  the  said  Hugh  meaning)  were  the  chief  causes  thereof, 
and  that  he  (himself  again  meaning)  would  be  revenged  on  them  (the  said  Richard  Hill 
and  James  Logan  again  meaning),  though  to  the  hazard  of  his  body  and  soul,  to  the  great 
contempt  and  deprivation  of  the  authority  and  judgment  of  the  said  Richard  Hill  and  James 
Logan  and  their  associates,  justices  of  the  Court  of  Common  Pleas,  to  the  evil  examfile  of 
others  in  such  case  delinquents,  and  in  manifest  contempt  of  our  said  lord  the  king  and 
his  laws,  and  against  the  peace  of  our  said  lord  the  king,  his  crown  and  dignity." 

To  Mr.  Ingraham,  of  Philadelphia,  I  am  indebted  for  the  following: 
"City  of  Philadelphia,  ss. : 

"  The  grand  inquest  for  our  sovereign  lord  the  king,  who  now  is  for  the  body  of  the 
City  of  Philadelphia  aforesaid,  upon  their  oath  and  solemn  affirmations  respectively  do 
present,  that  Bryan  M'Loughlin,  late  of  the  City  of  Philadelphia,  labourer,  being  a  wicked, 
evil  minded  person,  and  the  allegiance  due  to  our  sovereign  lord  George  the  Second,  by 
the  grace  of  God  of  Great  Britain,  France  and  Ireland  king,  defender  of  the  faith,  (fee, 
not  regarding  but  seditiously  and  maliciously  intending  to  move  and  excite  discord  artd 
rebellion  within  the  province  of  Pennsylvania,  and  to  bring  our  said  sovereign  lord  the 
now  king  into  contempt  with  his  subjects,  the  fourteenth  day  of  June,  in  the  tvventy-<  ighth 
year  of  the  reign  of  our  said  lord  the  king,  at  the  City  of  Philadelphia  aforesaid,  and 
within  the  jurisdiction  of  this  court,  in  the  presence  and  hearing  of  divers  liege  subjects 
of  our  said  lord  the  now  king,  wickedly  and  maliciously  did  publish,  utter  and  with  a  loud 
voice  pronounce  English  words  of  the  following  tenor  and  effect,  that  is  to  s:iy  :  'I'  (him- 
self  the  said  Bryan  M'Loughlin  meaning),  'will  lose  my  life  for  C-harley,'  (Charles,  son  to 
the  person  pretending  to  be  king  of  England  by  the  style  and  title  of  James  the  Third 
meaning);  'and  I'  (himself  the  said  Bryan  meaning)  'hope  he'  (,tlie  said  Charles  again 
meaning)  'will  push  up  once  more  and  enjoy  his  own  again'  (the  crown  of  Great  Britain 
meaning),  'and  send  Georgcy'  (our  said  sovereign  king  George  the  Second  meaning) 
'home  to  Hanover,  where  he  belongs;'  to  the  great  scandal  and  contempt  of  our  said  lord 
the  now  king,  to  the  evil  and  pernicious  example  of  all  others  in  such  case  offending,  and 
against  our  said  lord  the  now  king,  his  crown  and  dignity,  «Slc." 

in)  2  Stark,  on  Slander,  357. 

48* 


570  OFFENCES  ACAIA'ST  SOCIETY. 

Sccovd  count. 

And  the  jurors,  aforesaid,  &c.  That  the  said  A.  B.  being  snob 
wicked,  seditious  aud  evil  disposed  person  as  aforesaid,  and  greatly 
disaffected  to  our  said  lord  the  king,  and  contriving  and  intending 
the  liege  subjects  of  our  said  lord  the  king,  to  incite  and  move  to 
hatred  and  dislike  of  the  person  of  our  said  lord  the  king,  and  the 
governnient  established  within  this  realnn,  on,  &c.,  with  force  and 
arms  at,  &c.,  unlavvlully,  wickedly,  maliciously  and  seditiously,  in 
the  presence  and  hearing  of  divers  liege  subjects  of  our  said  lord  the 
king,  again  did  publish,  utter  and  declare  of  and  concerning  our  said 
lord  the  king,  and  his  good,  true  and  faithful  subjects,  these  words 
following,  that  is  to  say:  "1  (meaning  the  said  A.  B.)  hope  king 
George  the  Third  (meaning  our  said  lord  the  king)  will  soon  be  no 
more  ;  damnation  to  all  royalists."     [Conclude  as  before). 

Uttering  blasphemous  language  as  to  God. 

That  A.  B.,  of,  &c.,  not  having  the  fear  of  God  before  his  eyes, 
but  being  moved  and  seduced  by  the  instigation  of  the  devil,  and 
contriving  and  intending  Almighty  God  to  blaspheme  and  dishonour, 
on,  &c.,at,&c.,and  witliin,  &.c.,  in  the  preserjce  and  hearing  of  divers 
good  citixens  of  tliis  connnon wealth,  unlawlully,  wickedly  and  blas- 
phemously did  say,  pronounce  and  with  a  loud  voice  publish  and 
jiroclaim  these  profane  and  blasphemous  English  words  following, 
to  wit,  (here  insert  the  ivords),  to  the  great  dishonour  and  contempt 
of  Almighty  God,  to  the  evil  example  of  all  others  in  such  cases 
offending,  contrary  to  the  form  of  the  act  of  general  assembly  in  such 
case  made  and  provided,  and  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 

Blaspheming  Jesus  Christ.{o) 

That  R.,  &c.,  on,  &c.,  wickedly,  maliciously  and  blasphemously 
did  utter,  and  with  a  loud  voice  publish,  in  the  presence  and  hearing 
of  divers  good  and  Christian  people,  &c.,  of  and  concerning  the  Chris- 
tian religion,  and  of  and  concerning  Jesus  Christ,  the  I'alse,  scanda- 
lous, malicious,  wicked  and  blasphemous  words  following,  to  wit : 
"Jesus  Christ  was  a  bastard,  and  his  mother  nuist  be  a  whore,"  to 
the  contempt  of  the  Christian  religion  and  the  laws  of  this  state,  to 
the  evil  example  of  all  others  in  like  manner  offending,  and  against, 
(fee.     [Conclude  as  in  book  1,  chap.  3). 


Blaspheming  the  Holy  Ghost.(p) 

That  A.  B.  of,  &c.,  labourer,  being  a  person  of  an  immoral  and 
irreligious  mind  and  disposition,  and  hitending  the  Christian  religion 

(o)  In  an  argument  of  great  felicity  and  Rtrcnc^th,  a  conviction  under  this  indictment 
as  at  coiriiiion  law,  was  sustained  in  IH\\  liy  Cliancellor  ((lien  chief  justice)  Kent,,  wlioa 
delivering  the  opinion  of  the  Su[)ri;ino  Court  in  rco:)lc  v.  liugglus,  8  Johns.  2.11. 

(/>)  Davis'  Prec.  73. 


LIBEL.  571 

to  revile  and  bring  into  contempt,  on,  &c.,  at,  &c.,  did  wilfully  commit 
the  [leinous  crime  of  blasphemy  by  williilly  cursing  and  reproaching 
the  Holy  Ghost;  that  is  to  say,  tlie  said  A.  B.  then  and  there  in  the 
presence  and  hearing  of  divers  good  and  worthy  citizens  of  said  com- 
monwealth, did  wiltully,  profanely  and  blasphemously  speak,  utter, 
publish  and  pronounce  these  profane  and  blasphemous  words  follow- 
ing, to  wit,  \here  insert  the  words  spoken,  verbatim,  loilh  proper 
innuendoes  if  the  words  require  it);  to  the  great  dishonour  of  reli- 
gion, good  morals  and  good  manners,  against,  &,c.,  and  contrary,  &c. 
{^Conclude  as  in  book  1,  chap.  3). 

Composing  and  publishing  blasphemous  UbeL{q) 

That  A.  K.,  &.C.,  of,  &c.,  on,  &c.,  at,  &c.,  with  force  and  arms,  dis- 
regarding the  laws  and  religion  of  this  commonwealth,  and  profanely 
devising  and  intending  to  bring  the  holy  scriptures  and  the  Christian 
religion  into  disbelief  and  contempt  among  the  people  of  this  com- 
monwealth, unlawfully  and  wickedly  did  compose,  print  and  publish, 
and  did  cause  and  procure  to  be  composed,  printed  and  published, 
a  certain  scandalous,  impious,  obscene,  blasphemous  and  profane 
libel,  of  and  concerning  God,  and  of  and  concerning  the  holy  scrip- 
tures, and  of  and  concerning  the  Christian  religion,  which  libel  is 
published  and  contained  in  a  certain  printed  sheet  of  paper,  com- 
monly called  a  newspaper, and  said  printed  sheet  of  paper  containing 
said  libel  is  entitled  "Boston  Investigator,"  volume  second,  number 
thirty-nine,  whereof  said  A.  K.  was  editor  and  publisher,  in  which 
said  libel  and  printed  sheet  of  paper,  so  printed,  published  and  com- 
posed, and  so  caused  and  procured  to  be  composed,  printed  and  pub- 
lished as  aforesaid,  by  said  A.  K.,  the  said  A.  K.  did  wilfully  blas- 
pheme the  holy  name  of  God,  by  denying  and  contumeliously 
reproaching  God,  his  creation,  government  and  final  judging  of  tlie 
world,  and  by  reproaching  Jesus  Christ  and  the  Holy  Ghost,  and 
contumeliously  reproaching  the  holy  word  of  God.  In  one  part  of 
which  scandalous  and  obscene  libel,  among  other  things  there  were 
and  are  contained  certain  scandalous,  impious,  obscene  and  blasphe- 
mous matter  and  things,  of  and  concerning  Jesus  Christ,  and  of  and 
concerning  the  Holy  Ghost,  and  of  and  concerning  the  holy  scrip- 
tures, and  of  and  concerning  the  Christian  religion,  according  to  the 
])urport  and  effect  following,  to  wit,  [here  folloivs  a  passage  libelling 
our  Saviour,  which  in  consequence  of  its  gross  obscenity,  is  omitted). 
And  in  another  part  of  said  libel  there  were  and  are  contained 
certain  scandalous,  impious,  profane  and  blasphemous  matter  and 
things  of  and  concerning  God,  and  of  and  concerning  the  Christian 
religion,  according  to  the  purport  and  effect  following,  to  wit : 

'•  I  cannot  pass  over  the  subject  of  prayer  without  adverting  to  the 
curious  and  strange  predicament  that  God  is  placed  in,  by  listening 
10  the  unceasing  and  endless  variety,  and  what  is  worse,  contradictory 
j)etitions,  that  are  every  moment  ascending  up  or  down  to  him.  I 
think  the  old  gentleman  is  more  a  subject  of  pity,  than  General  Jack- 
et) The  couit  held  a  coiiviction  on  this  indicliiicnl  proper  in  Com.  v.  Knccland,  20 
FicK.  "^06. 


572  OFFENCES  AGAINST  SOCIETY. 

Soil  was  during  his  late  visit;  his  bowing  and  shaking  was  very 
arduous,  but  it  was  all  one  way,  congratulatory  and  pleasing,  and  lie 
had  some  occasional  respite,  but  only  think  of  God  having  no  respite 
whatever,  day  or  night." 

And  in  another  place,  said  libel  contains  these  scandalous,  profane 
and  blasphemous  words,  matters  and  things  following,  of  and  con- 
cerning God,  to  wit : 

"  It  therefore  appears  to  me  that  God  must  have  an  ear  very  dif- 
ferent from  any  thing  I  can  conceive  of,  to  hear  so  many  contradic- 
tory prayers  all  at  once;  and  I  am  equally  at  a  loss  to  imagine  how 
he  could  recollect  them  all,  and  at  what  time  they  are  apt  to  be 
answered.  Perhaps  he  keeps  a  set  of  books,  and  clerks  to  enter  all 
the  prayers  in  ;  but  another  difficulty  presents  itself.  How  could  he 
inform  all  those  clerks  at  one  time  what  to  enter?  Besides,  when 
would  he  find  time  to  examine  these  books  so  as  to  answer  all  the 
petitions  at  the  proper  time  ?" 

And  the  said  libel  in  another  part  thereof  among  other  things,  con- 
tains the  following  scandalous,  profane  and  blasphemous  words, 
matters  and  things  of  and  concerning  God,  and  of  and  concerning 
Jesus  Christ,  and  of  and  concerning  the  holy  scriptures,  to  wit : 

"  1.  Universalists  believe  in  a  God,  which  I  do  not  ;  but  believe 
that  their  God  with  all  his  nioral  attributes  (aside  from  nature  itself), 
is  nothing  more  than  a  mere  chimera  of  their  own  imagination." 

"2.  Universalists  believe  in  Christ,  which  I  do  not;  but  believe 
that  the  whole  story  concerning  him  is  as  much  a  fable  and  a  fiction 
as  that  of  the  God  Prometheus,  the  tragedy  of  whose  death  is  said  to 
have  been  acted  on  the  stage,  in  the  theatre  at  Athens,  five  hutidred 
years  before  the  Christian  era." 

"3.  Universalists  believe  in  miracles,  which  I  do  not;  but 
believe  that  every  pretention  to  them  can  either  be  accounted  for  on 
natural  principles,  or  else  is  to  be  attributed  to  mere  trick  and 
imposture." 

"  4.  Universalists  believe  in  the  resurrection  of  the  dead,  in  immor- 
tality and  eternal  life,  which  1  do  not ;  but  believe  that  all  life  is 
mortal,  that  death  is  an  eternal  extinction  of  life  to  the  individual 
who  possesses  it,  and  that  no  individual  life  is,  ever  was  or  ever  will 
be  eternal  :" 

To  the  great  scandal  and  contumelious  reproach  of  God,  and  his 
holy  natiK^,  his  creation,  government  and  final  judging  of  the  world, 
of  Jesus  Christ  and  the  Holy  Ghost,  of  the  holy  words  of  God,  and 
of  the  Christian  religion,  against,  &c.,  and  coiurary,  &c.  [Conclude 
as  in  book  1,  chap.  3). 

Obscene  libel.     First  count,  not  setting  forth  libellous  matter.{r) 

ThatP.  H.  of  in  the  county  of  labourer,  being  a  scandal- 

ous and  evil  disposed  person,  and  contriving,  devising  and  intending  the 

(r)  "  Tlio  fourth  and  fifth  counts  in  this  iiifiiftment,"  said  Parker  f!.  J.,  in  Com.  t). 
Hoinics,  17  Mmhs.  336,  referring  to  the  two  counts  in  llie  text,  "  are  eertainly  jfood ;  for  it 
can  never  he  rr'(|uire(l  th.it  an  ohscenc  hook  and  |)ieture  should  ho  dis|ii:iyed  upon  tFic 
records  of  tlie  court,  which  must  he  done  if  liie  description  in  these  counts  is  insufficient." 


LIBEL.  573 

mornls  as  well  of  the  youth  as  of  other  good  citizens  of  said  common- 
wealth to  debauch  and  corrupt,  and  to  raise  and  create  in  their  minds 
inordinate  and  lustful  desires,  with  force  and  arms  at  in  the  county- 

aforesaid,  knowingly,  unlawfully,  wickedly,  maliciously  and  scandal- 
ously did  utter,  publish  and  deliver  to  A.  B.  a  certain  lewd,  wicked, 
scandalous,  infamous  and  obscene  printed  book,  entitled  "  Memoirs 
of  a  Woman  of  Pleasure,"  which  said  printed  book  is  so  lewd, 
wicked  and  obscene  that  the  same  would  be  offensive  to  the  court 
here  and  improper  to  be  placed  U])  ;n  the  records  thereof;  wherefore 
the  jurors  aforesaid  do  not  set  form  the  same  in  this  indictment ;  to 
tlie  manifest  corruption  and  subversion  of  the  youth  and  other  good 
citizens  of  said  conuiionwealth  in  their  manners  and  conversation,  in 
contempt  of  law,  to  the  evil  example,  &c.,  and  against,  &c.  {Con- 
clude as  ill  book  1,  chap.  3). 

Second  count.     Publishing  an  obscene  picture. 

That  the  said  P.  H.  being  such  person  as  aforesaid,  and  devising, 
contriving  and  intending  as  aforesaid,  on,  &c.,  at,  Slc,  unlawfully, 
wantonly  and  maliciously  did  utter  and  publish  to  one  C.  D.  a  citizen 
of  said  commonwealth,  a  certain  lewd,  scandalous  and  obscene  print 
on  paper,  representing  a  man  in  an  indecent  and  obscene  posture  with 
a  woman,  that  is  to  say,  in  the  act  and  posture  of  carnal  copulation 
with  each  other;  which  said  lewd,  scandalous  and  obscene  print  was 
contained  and  published  in  a  certain  printed  book  entitled  "  Memoirs 
of  a  Woman  of  Pleasure;"  to  the  manifest  corruption  and  subversion 
of  the  morals  and  manners  of  the  youth  of  this  commonwealth  and 
of  the  citizens  thereof,  to  the  evil  example,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Exhihitivg  obscene  pictures.(s) 

That  J.  S.,  late,  &c.,  J.  H.,  &c.,  being  evil  disposed  persons,  and 
designing,  contriving  and  intending  the  morals  as  well  of  youth  as  of 
divers  other  citizens  of  this  commonwealth  to  debauch  and  corrupt, 
and  to  raise  and  create  in  their  minds  inordinate  and  lustful  desires, 
on,  &c.,  at,  &c.,  and  within  the  jurisdiction  of  this  court,  in  a  certain 

See  also  Com.  ».  Sharpless,  2  S  &,  R.  91.  It  is  necessary,  however,  tliat  the  pleader  should 
expressly  aver  llie  indecency  of  the  book  or  picture  as  the  excuse  for  its  non-settings  forth, 
the  same  reasoning-  applying-  as  obtains  when  a  forged  instrument  is  lost,  or  is  in  the  defend- 
ant's possession,  where  such  fact  mast  be  averred  in  order  to  explain  the  non-descrip- 
tion of  the  instrument  itself.  See  Wh.  C.  L.  84,  where  the  cases  are  collected ;  and  see 
also  ante,  p.  546. 

(s)  Sharpless  ».  Com.,  2  S.  &,  R.  91.  A  verdict  was  sustained  by  the  Supreme  Court 
on  this  indictment,  Ycates  J.  emphatically  declaring :  "  The  destruction  of  morality  ren- 
ders the  power  of  tlie  government  invalid,  lor  govcrninent  is  no  more  than  public  order. 
It  weakens  the  bands  by  which  society  is  kei)t  together.  The  coiruption  of  the  public 
mind  in  general,  and  debauching  the  manners  of  youth  in  particular,  by  lewd  and  obscene 
pictures  exhibited  to  view,  must  necessarily  be  attended  with  the  most  injurious  conse- 
quences, and  in  such  inst-inccs  courts  of  justice  are  or  ought  to  be  the  schools  of  morals." 

In  such  an  indictment  it  was  said,  it  need  not  be  averred  that  the  exhibition  was  public; 
if  it  be  stated  that  the  picture  was  shown  to  sundry  persons  for  money,  it  is  a  sufficient 
averment  of  its  publication.  Nor  is  it  necessary  that  the  postures  and  attitudes  of  the 
figures  should  be  minutely  described  :  it  is  cnougli  if  the  picture  be  so  described  as  to 
enable  the  jury  to  ap()ly  the  evidence  and  to  judge  whether  or  not  it  is  an  indecent  picture  ; 
nor  is  it  necessary  to  lay  the  house  in  which  the  picture  is  exhibited,  to  be  a  nuisance; 
the  otfonce  not  being  a  nuisance,  but  one  tenuing  to  the  corruption  of  morals. 


574  OFFENCES  AOAINST  SOCIETY. 

house  there  situate,  unlawfully,  wickedly  and  scandalously  did  exhibit 
and  show  for  money  to  persons  to  the  inquest  aforesaid  unknown,  a 
certain  lewd,  wicked,  scandalous,  infamous  and  obscene  painting, 
representing  a  man  in  an  obscene,  impudent  and  indecent  posture 
with  a  woman,  to  the  manifest  corruption  and  subversion  of  youth 
and  other  citizens  of  this  commonwealth,  to  the  evil  example,  &c., 
and  against,  Slc.     {Conclude  as  in  book  1,  chap.  3). 

Against  the  printer  of  a  newspaper  for  publishing  an  advertisement  by 
a  married  woman,  offering  to  become  a  7nistress.{t) 

That  A.  B.,  late,  &c,,  in  the  county  aforesaid,  printer,  being  a  per- 
son of  an  immoral  and  depraved  mind  and  disposition,  and  unlaw- 
fully contriving  and  intending  to  bring  the  state  of  matrimony  into 
public  contempt  and  discredit,  to  corrupt  the  morals  of  the  people  of 
this  commonwealth,  and  to  induce  the  citizens  thereof  to  commit  the 
crimes  of  fornication  and  adultery,  on  at  did  unlawfully 

and  wickedly  print  and  publish  and  cause  and  procure  to  be  printed 
and  published,  in  a  certain  public  newspaper  called  the,  {here  insert 
the  title  of  the  newspaper),  a  certain  immoral  and  mischievous  libel, 
in  the  form  of  an  advertisement,  which  said  immoral  and  mischievous 
libel  is  of  the  purport  and  etlect  following,  to  wit,  {here  insert  the 
advertisement  verbatim,  with  proper  innuendoes) ;  to  the  great 
scandal  and  reproach  of  religion,  good  morals  and  good  manners,  to 
the  evil  and  pernicious  example  of  all  others  in  like  case  to  offend, 
and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 


CHAPTER  Vlir. 

OFFENCES  AGAINST  FOREIGN  MINISTERS. 

Assault  on  a  foreign  minister. 

That  A.  B.,  late  of,  &c.,  on,  &:c.,  at,  &c.,  and  within  the  jurisdiction 
of  this  court,  with  force  and  arms,  in  and  upon  one  C.  D.,  then  and 
there  being  a  public  minister,  to  wit,  did  make  an  assault,  and 

liim  the  said  C.  U.,  then  and  there  being  such  public  minister  as 
aforesaid,  did  then  and  there  strike  and  wound,  and  other  wrongs  to 
the  said  C.  D.  then  and  there  did,  contrary,  &c.,  and  against,  &c. 
{Conclude  us  in  book  1,  chap.  3). 

(<)  Davis'  Prcc.  156;  3  Cliit.  C.  L.  887. 


AGAINST  FOREIGN  MINISTERS.  575 

Second  count. 

That  A.  B.,  late  of,  &c.,  heretofore,  on,  &c.,  at,  &c.,  and  within  the 
jurisdiction  of  this  court,  with  force  and  arms,  in  and  upon  one  C.  D., 
then  and  there  being  a  public  minister,  to  wit,  the  in  the  United 

States  of  America,  duly  recognized  and  received  as  such  by  the 
president  of  the  said  United  States,  did  make  an  assault;  and  him 
the  said  C.  D.  then  and  there  being  such  public  minister  aforesaid, 
did  then  and  there  strike  and  wound,  and  other  wrongs  to  the  said 
C.  D.  tiien  and  there  did,  to  the  great  damage  of  the  said  C.  D., 
against,  &c.,  and  against,  &c.     (^Conclude  as  in  book  1,  chap.  3). 

Third  count. 

[Like  second  count,  siibstitiitiyig) :  "  duly  received  and  recognized 
as  such  by  the  department  of  state  of  the  said  United  States,"  for 
"duly  recognized  and  received  as  such  by  the  president  of  the  said 
United  States." 

Fourth  count. 

That  the  said  A.  B.,  late  of,  &c.,  heretofore,  to  wit,  on,  &c.,  at,  &c,, 
and  within  the  jurisdiction  of  this  court,  with  force  and  arms,  in  and 
upon  one  C.  D.,  then  and  there  being  a  public  minister,  to  wit,  the 
in  the  United  States  of  America,  did  make  an  assault;  and 
him  the  said  C.  D.  then  and  there  being  such  public  minister  aforesaid, 
did  then  and  there  strike  and  wound,  and  did  then  and  there  infract 
the  law  of  nations  by  offering  violence  to  the  person  of  the  said  C. 
D.,  so  being  such  public  minister  as  aforesaid,  and  other  wrongs  to 
the  said  C.  D.  then  and  there  did,  to  the  great  damage  of  the  said 
C.  D.,  contrary,  &c.,  and  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 

Fifth  count. 

[Like  fourth  count,  except  before^ :  "  did  make  an  assault,  and 
him  the  said  then  and  there,"  &c.,  insert  "duly  received  and 

recognized  as  such  by  the  president  of  the  United  States." 

Sixth  count. 

[Like  fourth  count,  omitting  the  charge  of):  "strike  and  wound," 
&c. 

Seventh  count. 

[Same  as  sixth  count,  inserting  before)',  "did  make  an  assault," 
&c.,  "duly  received  and  recognized  as  such  by  the  president  of  the 
United  States." 

Fjightk  count. 

That  the  said  A.  B.,  late  of,  &c.,  heretofore,  on,  &c.,  at,  Sec,  and 
within  the  jurisdiction  of  this  court,  with  force  and  arms  did  infract 
the  law  of  nations,  by  offering  violence  to  the  person  of  one  C.  D., 
the  said  C.  D.  then  and  there  being  a  public  minister,  to  wit,  the 
in  the  United  States  of  America,  to  the  great  damage  of  the 
said  C.  D.,  against,  &c.,  and  against,  &c.  [Conclude  as  in  book 
1,  chap.  3). 

JVirilh  count. 

[Same  as  eighth  count,  inserting  after):  "in  the  United  States  of 
America,"  and  before  "  to  the  great  damage  of  the  said,"  &c.,  "  duly 
received  and  recognized  as  such  by  tlie  president  of  the  said  Umted 
States." 

[Fur  jinal  count,  see  p.  17,  97  n,  123  n). 


576  OFFENCES  AGAINST  SOCIETY. 

Contempt  aj  the  person  of  a  foreign  minister,  by  threatening  bodily 
harm  to  another  in  his  presence.i^a) 

That  C,  and  L.,  late,  &lc.,  on,  &c.,  at,  &.C.,  in  the  dwelling  house  of 
his  excellency  the  French  minister  plenipotentiary,  in  the  presence  of 
F.  B,  M.,  unlawfully  and  insolently  did  threaten  and  menace  bodily 
harm  and  violence  to  the  person  of  the  said  F.  B.  M.,  he  being  cotj- 
sul-general  of  France  to  the  United  States,  consul  for  the  State  of 
Pennsylvania,  secretary  of  the  French  legation,  &c.,  resident  in  the 
house  aforesaid,  and  under  the  protection  of  the  law  of  nations  and 
this  commonwealth,  against,  &,c.     [Conclude  as  in  book  1,  chap.  3). 

{For  final  count,  see  jy.  17,  97  7i,  123  n). 


Arresting  a  foreign  mi7iister.{b) 


That  P.  R.  B.,  late  of,  &c.,  on,  &c.,  at,  &c,,  did  imprison  one 
L.  B.,  he  the  said  L.  B.  then  and  there  being  a  public  minister,  to 

(a)  Res.  V.  De  Long  Champs,  1  Dall.  111. 

(6)  U.  S.  V.  Benncr.  This  indicttnent  was  drawn  hy  Mr.  G.  M.  Dallas  in  1830,  and  was 
sustained  in  1  Bald.  234.    On  arrest  ol' judgment  in  tliis  case,  Mr.  Justice  Baldwin  said  : 

"  Tiie  reasons  are  two. 

"  1.  That  the  only  count  on  whicii  the  verdict  is  given  against  the  accused,  does  not 
describe  him  as  an  officer;  does  not  charge  liim  with  having  executed  process,  nor  state 
any  offence  against  any  act  of  congress  or  law  of  the  United  Stales. 

"2.  'I'liat  tlie  said  count  does  not  state  that  a  public  minister  of  any  foreign  power  or 
state,  authorized  and  received  as  such  by  the  president  of  the  United  Stales,  was  impri- 
soned, or  was  or  might  have  been  arrested  or  imprisoned. 

"The  act  of  congress  upon  which  this  indictment  is  framed  provides,  in  its  different 
sections,  for  different  classes  of  cases,  and  the  counts  of  the  indictment  are  made  to  meet 
the  different  provisions  of  these  sections.  'I'he  twenty-fifth  section  enacts,  that  if  any 
writ  or  process  shall  be  sued  forth  or  prosecuted  in  any  of  the  courts  of  the  United  Slates, 
or  of  a  particular  state,  whereby  the  person  of  any  ambassador,  or  other  public  minister 
of  any  foreign  prince  or  state,  authorized  and  received  as  such  by  the  president  of  the 
United  States,  may  be  arrested  or  imprisoned,  &c.,  such  writ  or  process  shall  be  adjudged 
to  be  utterly  null  and  void. 

"  'J'iie  twenty-sixth  section  enadts,  that  in  case  any  person  or  persons,  shall  sue  forth 
or  prosecute  any  such  writ  or  process,  such  person  or  persons,  and  all  attorneys  or 
solicitors  protsecuting  or  soliciting  in  such  case,  and  ill  officers  executing  any  such  writ 
or  process,  being  thereof  convicted,  &.c. 

"The  twenty-seventh  section  enacts,  that  if  any  person  shall  violate  any  safe  conduct, 
or  passport  duly  obtained,  and  issuc'd  under  the  authority  of  the  United  States,  or  shall 
strike,  wound,  imprison,  &c.,  by  offering  violence  to  the  person  of  an  ambassador  or  other 
public  minister,  such  person,  <!tc. 

"The  twenty-firth  and  twenty-sixth  sections  afford  protection  and  redress  for  public 
ministers,  authorized  and  received  as  such  by  the  president  of  the  United  Slates,  and 
against  arrest  and  imprisonment  under  and  by  virtue  of  any  writ  or  process,  sued  forth 
and  prosecuted  in  any  court  of  the  United  Stales,  or  of  a  |)ailicular  state,  or  by  any  judge 
or  justice  therein,  and  all  the  counts  in  this  indictment  intended  to  charge  an  offence  in 
violation  of  these  sections,  do  state  that  Ij.  B.  was  a  public  minister,  authorized  and 
received  as  such  by  the  president  of  the  (Jnited  Stales;  that  a  writ  was  sued  forth  against 
him  from  an  alder. nan  of  thct'ity  of  I'hiladelpiiia,  and  that  the  defendant,  being  an  otlicer, 
did  execute  the  said  writ,  and  thereby  arre^l  the  person  of  the  said  L.  B. ;  upon  these 
counts  Ihc  deli;:ndant  is  acr|uitted  by  the  verdict  of  tlu^  j'^y. 

"The  twenty-seventh  section  of  the  act  is  intended  to  cover  other  cases  not  described  in 
the  precftding  sections,  and  makes  it  |)enal  for  any  person  to  imprison  the  ijcrson  of  a 
public  iniiiister,  although  he  may  not  be  authorized  and  received  as  such  by  the  president 
of  the  United  Slates,  and  although  the  person  who  thus  offers  violence  to  his  person,  be 
not  an  ollieer,  and  does  it  nnl  by  virtue  of  any  writ  or  [)rocess  from  any  court,  jiid^^e  or 
justice.  'I'he  count  on  which  the  defendant  has  been  convicted,  charges  the  offence 
punishable  under  this  section  of  the  act;  which  does  not  require  that  the  delciidant  s^iould 


AGAINST  FOREIGIV  MIMSTERS.  577 

wit,  the  secretary  of  the  legation  from  liis  majesty  tlie  kin?  of  Den- 
mark, near  the  United  States  of  America,  in  manifest  intVaciion  of 
the  laws  of  nations,  contrary,  &c.,  and  against,  &c.  {Conclude  as  i?i 
book  1,  chap.  3). 

Second  count.     Imprisoning  same. 

That  the  said  P.  R,  B.,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  and 
within  the  jurisdiction  of  this  court,  with  force  and  arms,  did  impri- 
son the  said  L.  B.,  he  the  said  L.  B.  then  and  there  being  a  public 
miinister,  to  wit,  an  attache  to  the  legation  of  his  majesty  the  king  of 
Denmark,  near  the  United  States  of  America,  in  manifest  infraction 
of  the  laws  of  nations,  contrary,  &c,,  and  against,  &c.  (Conclude  as 
in  book  I,  chap.  3). 

77iird  count.     Same  as  first,  stated  more  specially. 

That  heretofore,  to  wit,  on,  &c.,  at,  &c.,  and  within  the  jurisdic- 
tion of  this  court,  a  certain  writ  was  sued  forth  and  prosecuted  by 
one  G.  H.  U.,  from  one  J.  B.,  then  and  there  an  alderman  of  the  City 
of  Philadelphia,  whereby  the  person  of  the  said  L.  B.,then  and  there 
as  aforesaid  being  a  public  minister,  to  wit,  the  secretary  of  the  lega- 
tion of  his  majesty  the  king  of  Denmark,  near  the  United  States  of 
America,  authorized  and  received  as  such  by  the  president  of  the 
United  States,  was  then  and  there  arrested;  and  that  the  said  P.  R. 
B.,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  and  within  the  jiu'isdiction  of 
this  court,  being  then  and  there  an  officer,  to  wit,  a  constable  of  the 
City  of  Philadelphia,  with  force  and  arms,  did  execute  the  said  writ, 
and  then  and  there  and  thereby  arrest  the  person  of  the  said  L.  B., 
then  and  there  being  as  aforesaid  a  public  minister  as  aforesaid,  in 
violation  of  the  laws  of  nations,  to  the  great  disturbance  of  the  pub- 
lic repose,  contrary,  &c.,  and  against,  &c.  {Conclude  as  in  book  I, 
chap.  3). 


be  an  officer  having  executed  process,  nor  that  the  public  minister,  who  was  imprisoned, 
should  liave  been  authorized  and  received  as  such  by  the  president  of  the  United  States. 

"  Tlie  reasons  for  a  new  trial  will  now  be  considered. 

"The  second  count  on  which  the  defendant  has  been  convicted,  relates  to  the  same 
transaction,  and  the  same  public  minister  as  the  fiist,  of  which  he  is  acquitted,  and  ditftrs 
from  it  only  in  describing  the  minister  as  an  attache  to  the  legation  of  Denmark,  and  the 
first  calls  him  the  secretary  of  the  legation ;  but  it  was  the  clear  right  of  the  jury,  and  so 
it  was  given  them  in  charge,  to  find  a  general  verdict  of  guilty,  leaving  it  to  tlie  court  to 
apply  it  to  the  counts  in  the  indictment,  or  to  select  for  themselves  the  count  on  which 
they  would  render  the  verdict,  as  in  their  opinion  the  evidence  might  warrant.  If  the  count 
were  bad  in  itself,  such  a  verdict  could  not  be  maintained  ;  but  it  is  no  objection  to  it, 
that  it  is  substantially  the  same  with  another  count  on  which  the  defendant  has  been  ac- 
quitted, for  the  different  counts  of  an  indictment  always  relate  to  the  same  transaction, 
describing  it  in  different  ways,  or  with  different  circumstances,  that  the  jury  may  apply 
their  verdict  to  all  or  either  of  them,  as  the  evidence  shall  warrant ;  or  if  the  verdict  be 
generally  guilty,  the  application  of  it  is  made  by  the  court.  No  injury  or  injustice  is 
done  to  the  defendant,  who  is  put  but  once  on  his  trial  for  the  same  offence.  The  jury, 
in  this  case,  have  not  selected  the  count  for  their  verdict  of  conviction  to  which  the  evi- 
dence most  particularly  applies;  but  this  was  for  them  to  judge  of,  and  is  no  cause  of 
complaint  on  the  part  of  the  defendant;  it  cannot  affect  his  punishment,  and  is  clearly 
maintained  for  the  evidence. 

"  It  is  our  opinion  that  the  reasons  filed  in  the  arrest  of  judgment  are  not  maintained, 
and  it  is  ordered  that  the  motion  be  overruled." 
49 


578  OFFE\CES  AGAINST  SOCIETY. 

Third  count.     Same  in  another  shape. 

That  afterwards,  to  wit,  on,  &c.,  at,  &c.,  and  within  the  jurisdic- 
tion of  this  court,  a  certain  writ  was  sued  forth  and  prosecuted  by 
one  G.  H.  U.,  from  one  J.  B.,  then  and  there  an  alderman  of  the  City 
of  Philadelpliia,  whereby  the  person  of  the  said  L.  B.,  then  and  there 
as  aforesaid  being  a  pubUc  minister,  to  wit,  an  attache  of  the  lega- 
tion of  his  majesty  the  king  of  Denmark,  near  the  United  States  of 
America,  authorized  and  received  as  such  by  the  president  of  the 
United  States,  was  then  and  there  arrested;  and  that  the  said  P.  R. 
B.,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  and  wiiliin  the  jurisdiction  of 
this  court,  being  then  and  there  an  officer,  to  wit,  a  constable  of  the 
City  of  Philadelphia,  with  force  and  arms,  did  execute  the  said  writ, 
and  then  and  there  and  thereby  as  aforesaid,  arrest  the  person  of 
the  said  L.  B.,  then  and  there  being  as  aforesaid  a  public  minister 
as  aforesaid ;  in  violation  of  the  laws  of  nations,  to  the  great  disturb- 
ance of  f)ublic  repose,  contrary,  &c.,  and  against,  &c.  {Conclude  as 
in  book  1,  chap.  3). 

{Add  counts  for  offering  violence  and  assaulting). 

Issuing  process  against  a  foreign  minister. {c) 

That  on,  &c.,  at,  &c.,  A.  D.,  being  then  and  there  a  public  minister 
of  a  foreign  prince,  to  wit,  the  envoy  extraordinary  and  minister 
plenipotentiary  of  his  majesty  the  emperor  of  all  the  Russias,  and 
being  then  and  there  duly  authorized  and  received  as  such  by  the 
president  of  the  United  States  of  America,  T.  M.,  late  of,  &c.,  then 
and  there  knowingly,  wilfully  and  unlawfully  did  sue  forth  certain 
process  in  a  court  of  the  State  of  Pennsylvania,  to  wit,  in  the  District 
Court  for  the  City  and  County  of  Philadelphia,  in  the  words  and 
characters  following,  that  is  to  say,  {here  set  forth  the  process),  and 
whereby  the  (person)  of  the  said  A.  D.,  then  and  there  being  a  pub- 
lic minister,  to  wit,  the  envoy  extraordinary  and  minister  plenipoten- 
tiary of  his  said  majesty  the  emperor  of  all  the  Russias  aforesaid, 
then  and  there  being  duly  authorized  and  received  as  such  by  the 
president  of  the  United  States  of  America  as  aforesaid,  might  be 
(arrested  and  imprisoned).  And  that  D.  A.,  late  of  the  said  district 
of  Pennsylvania,  attorney  at  law,  was  then  and  there  the  attorney 
knowingly,  wilfully  and  unlawfully  prosecuting  in  the  said  case,  to 
wit,  in  the  said  process  then  and  there  sued  forth  by  the  said  T.  M. 
as  aforesaid,  whereby  the  (person)  of  the  said  A.  D.,  then  and  there 
being  a  public  minister,  to  wit,  the  envoy  extraordinary  and  minister 
plctnpotentiary  of  his  said  majesty  the  emperor  of  all  llie  Russias  as 
aforesaid,  then  and  tiiere  duly  authorized  and  received  as  such  by 
the  president  of  the  United  Slates  as  aforesaid,  might  be  (arrested 
and  iniprisoned)  as  aforesaid.  And  that  J.  S.,  late  of,  &c.,  being  then 
and  there  an  officer  employed  for  the  service  of  process  is.vning  for 
tlie  said  District  Court  for  the  City  and  County  of  Pliiladelphia,  in 


(t)  Tliis  indictt/icnt  was  drawn  by  Mr.  A.  J.  Diillus!  in  1813.    Tlie  defendant  was  never 
Iriud. 


AGAIPIST    FOREIOy    MINISTERS.  r)79 

the  district  aforesaid,  to  wit,  a  deputy  of  the  slieriff  of  the  County  of 
Philadelphia,  in  the  district  of  Peiuisylvauia  aforesaid,, did  then  and 
there  knowingly,  wilfully  and  unlawfully  execute  the  said  process, 
by  then  and  there  serving  personally  upon  the  said  A.  D.,  then  and 
there  being  a  public  minister,  to  wit,  the  envoy  extraordinary  and 
minister  plenipotentiary  of  his  said  majesty  the  emperor  of  all  the 
Russias,  then  and  there  duty  authorized  and  received  as  such  by 
the  president  of  the  United  States  of  America  as  aforesaid,  a  copy 
of  the  said  process,  to  wit,  the  said  process  then  and  there  sued  forth 
by  the  said  T.  M.  as  aforesaid,  whereby  the  said  A.  D.  then  and 
there  being  a.  public  mifiister,  to  wit,  the  envoy  extraordinary  and 
minister  plenipotentiary  of  his  said  majesty  the  emperor  of  all  the 
Russias  as  aforesaid,  then  and  there  duly  authorized  and  received  as 
such  by  the  president  of  the  United  States  as  aforesaid,  might  be 
(arrested  or  imprisoned),  to  wit,  on,  &c.,  at,  &c.,  and  within  the  juris- 
diction of  this  court;  the  said  T.  M.,  D.  A.  and  J.  S.,  then  and  there 
knowingly,  wilfully  and  unlawfully  in  manner  aforesaid  violating 
tlie  laws  of  nations,  and  disturbing  the  public  repose,  against,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Se-cond  count. 

Same  as  first,  changing  "■  person,"  wherever  it  occurs  in  brackets 
into  "goods  and  chattels,"  and  "arrested  and  imprisoned,"  into 
*'  distrained,  seised  and  attached." 

Third  count. 

Same  as  first,  omitting  wherever  they  occur  the  words  "  wilfully 
and  knowingly." 

Fourth  count. 

Same  as  second,  omitting  wherever  they  occur  the  words  "  wil- 
fully and  knowingly." 

Opening  and  publishing  letter  of  foreign  minister. {d) 

That  whereas,  mutual  peace,  amity  and  good  understanding  did 
on,  &c.,  and  still  do  subsist  between  the  said  United  States  and  the 
king  of  Great  Britain,  and  the  ambassadors  and  public  ministers  of 
each  of  the  said  powers  are  lawfully  and  justly  entitled  to  perfect 
freedom,  immunity  and  security  in  their  persons,  papers,  letters  and 
despatches  within  the  territory  of  the  other  powers,  and  whereas  on 
the  said  tenth  day  of  June  in  the  year  aforesaid,  in  the  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  R.  L.,  Esq.,  was  am- 
bassador and  minister  plenipotentiary  from  the  s.iid  king  of  Great 
Britain  to  the  said  United  States  of  America,  and  in  that  capacity 
resided  at,  &c.,  being  the  seat  of  the  government  of  the  said  United 
States,  and  was  so  acknowledged  and  received  by  the  president  of 
the  said  United  States,  and  then  and  there  was  entitled  among  other 
rights,  ])rivileges  and  immunities  belonging. and  due  to  au.bassadors 
and  public  ministers  from  foreign  powers,  tf)  write  to  and  correspond 
with  the  public  servants  and  agents  of  his  said  sovereign  tlie  king  of 
Great   Britain,  freely  and  without  interruption,  confidentially  and 

(d)  U.  S.  V.  Thomas,  Phil.  1800.    This  indictment  was  drawn  by  Mr.  Rawle,  but  was 
never  tried. 


580  OFFENCES  AGAINST  SOCIETY. 

with  secrecy,  and  to  have  his  pubUc  and  private  letters  and  des- 
y)atches  safely,  securely  and  without  examination  or  interruption, 
carried  and  conveyed  through  any  part  of  the  territory  of  the  said 
United  States.  And  whereas  the  said  R.  L.,  Esq.,  so  being  an  am- 
bassador and  public  foreign  minister,  acknowledged,  received  and 
resident  as  aforesaid,  on  the  said  tenth  day  of  June  in  the  year  afore- 
said,in  the  district  aforesaid,  and  within  the  jurisdiction  of  this  court, 
had  written  a  certain  letter  on  business  respecting  the  public  duties  of 
the  saidR.  L.  in  his  public  capacity  aforesaid,  to  a  certain  J.  R.,  Esq., 
president  of  the  British  province  of  Upper  Canada,  the  said  J.  R.  then 
and  there  being  a  public  agent  of  the  said  king  of  Great  Britain,  to  wit, 
ui  Upper  Canada  aforesaid,  which  letter  bore  date,  &c,,  and  also  a 
certain  other  letter  on  such  business,  to  the  same  J.  R.,  Esq.,  which 
other  letter  bore  date,  &c.,  and  the  same  two  letters  closed  in  a  packet 
sealed  with  the  seal  of  the  said  R.  L.,  and  subscribed  with  his  the 
said  R.  L.'s  name,  to  wit,  with  the  letters  "  R,  L.,"  and  directed  to  the 
said  J.  R.,  Esq.,  by  the  words  "  The  Honourable  President  R.,  &c., 
Toronto,  Upper  Canada,"  he  the  said  R.  L.  so  being  ambassador  and 
public  minister  as  aforesaid,  had  caused  to  be  delivered  to  a  messen- 
ger or  person  employed  for  the  purpose  of  safely  conveying  the  same 
to  the  said  J.  R.,  Esq.;  that  D.  T.,  late,  &c.,  J.  T.,late,  &c.,and  G.  R., 
late  of,  &c.,  yeomen,  well  knowing  the  premises,  but  contriving  and 
unjustly  intending  to  interrupt  and  disturb  the  peace,  amity  and  good 
understanding  subsisting  between  the  said  United  States  and  the 
said  king  of  Great  Britain,  on,  &c.,  at,  &c.,  and  within  the  jurisdic- 
tion of  this  court,  maliciously,  unlawfully  and  without  the  license  of 
the  said  R.  L.,  Esq.,  the  said  sealed  packet  superscribed  and  directed 
as  aforesaid,  enclosing  the  said  two  letters,  did  break  open  and  the 
said  two  letters  did  then  and  there  open  and  read,  and  the  contents 
thereof  did  then  and  there  promulgate  and  make  publicly  known. 

And  the  grand  inquest  aforesaid  upon  their  oaths  and  affirmations 
aforesaid,  do  further  present,  that  the  said  D.  T.,  J.  T.,  G.  P.  and  also 
W.  D.,  late  of,  &c.,  contriving  and  unjustly  intending  as  aforesaid, 
afterwards,  to  wit,  on,  &c.,  at,  &c.,  and  witliin  the  jurisdiction  of  this 
court,  unlawfully  and  maliciously,  and  without  the  license  of  the 
said  R.  L.;  Esq.,  he  the  said  R.,  L.,  Esq.,  then  and  there  still  being 
and  continuing  ambassador  and  minister  plenipotentiary  from  the 
said  king  of  Great  Britain  to  the  said  United  States,  did  print  and 
publish,  and  cause  to  be  printed  and  published  the  su])stance  of  the 
contents  of  the  said  two  letters  in  a  certain  newspaper  printed  in 
Philadelphia  aforesaid,  called  "The  General  Advertiser  or  the 
Aurora,"  in  contempt  and  violation  of  the  laws  of  nations,  against 
the  form  of  the  treaty  between  the  said  United  States  and  the  said 
king  of  Great  Britain,  to  the  great  damage  of  the  said  R.  L.,  Esq., 
so  being  ambassador  and  minister  plenipotentiary  from  the  said  king 
of  Great  liritain  to  the  said  United  States,  and  against,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 


BIGAMY,  ADULTERY  AND  FORMCATIOW.  581 


CHAPTER  IX. 

BIGAMY,  ADULTERY  AND  FORNICATION. 

[So  far  as  these  offences  approach  open  lewdness  and  lasciviousness  they 
are  examined  ante,  pp.  423 — 455,  where  the  general  principles  applying 
to  them  as  such  are  considered.] 

Bigamy  generally.{a) 

That  J.  S,,  late  of,  <fec.,  labourer,  on,  &c.,  did  marry  one  A.  C, 
spinster,  and  her  the  said  A.  then  and  there  had  for  wife ;  and  that 
the  said  J.  S.  afterwards  and  whilst  he  was  so  married  to  the  said  A. 
as  aforesaid,  to  wit,  on,  &,c.,  at,  &c.,  feloniously  and  unlawfully  did 
marry  and  take  to  wife  one  M.  T.,  and  to  her  the  said  JNI.  was  then 
and  there  married,  the  said  A.  his  former  wife  being  then  alive; 
against,  &c.,  and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  the  said  J.  S.  afterwards,  to  wit,  on,  &c.,  at,  &c.,  was  appre- 
hended, {or,  that  the  said  J.  S.  now  is  in  custody  at,  &c.),  for  the 
felony  aforesaid. 

Polygamy  in  Massachusetts. {b) 

That  M.  M.  of,  &c.,  wife  of  one  P.  M.,  the  younger  of  that  name, 
at,  &c.,  on,  &c.,  she  being  then  a  singlewoman  unmarried,  by  the 
name  of  M.  D.,  was  lawfully  married  according  to  the  laws  of  said 
commonwealth  to  said  P.  M.  the  younger  of  that  name,  and  him 
then  and  there  had  and  took  for  her  husband  and  cohabited  with  him 
as  his  lawful  wife,  and  that  afterwards  she  the  said  M.  on,  &c.,  at,&c., 
did  unlawfully  marry  and  take  to  her  husband  one  W.  M.  B.,  she  the 
said  M.  then  and  there  being  married  and  the  lawful  wife  of  said  P. 
M.,  he  the  said  P.  M.  then  being  her  former  husband  and  living;  she 
the  said  M.  never  having  been  legally  divorced  from  said  P.  M. ;  and 

(a)  Arch.  C.  P.  5th  Am.  ed.  742.  The  statute  under  which  this  is  drawn,  malces  it  a 
felony  "if  any  person,  bein^  married,  sliall  marry  any  other  person  during  the  life  of  the 
former  husband  or  wile,"  &c.  The  Massachusetts  and  Virginia  st^itutes  are  so  closely 
analogous  in  ihcir  structure  (see  Wh.  C.  L.  552-3),  as  to  make  this  form  applicable  ia 
those  states  with  but  few  variations. 

By  the  English  .ict,  the  county  where  the  offender  is  apprehended  or  is  in  custody,  has 
jurisdiction  of  the  otilnce,  and  this  is  the  cause  of  the  averments  to  that  e.Tect  in  the  text; 
which  of  course  cun  be  discharged  as  surplusage  in  this  country  where  no  such  provision 
as  to  venire  exists. 

(b)  See  Com.  v.  Mash,  7  Mete.  472,  where  this  count  was  held  good. 

In  this  Cise  it  was  lield,  that  under  the  Rev.  Stats,  c.  130,  s.  2,  if  a  woman  who  has  a 
husband  living,  marry  another  person,  she  is  punish  ible,  though  her  husband  has  volun- 
tarily withdrawn  from  her,  and  remained  absent  and  unheard  of,  for  any  term  of  time 
less  than  seven  years,  and  though  she  honestly  believes,  at  the  time  of  her  second  mar- 
riage, that  he  is  dead. 

49* 


rj82  OFrENCES  AGAINST  SOCIETY. 

that  afterwards,  to  wit,  hitherto  at,  &c.,  she  the  said  M.  after  having 
married  said  W.  M.  B.,  continued  to  cohabit  witli  said  W.  M.  B.  as 
her  second  husband,  in  this  state,  to  wit,  at,  &c.,  whereby  and  by- 
force  of  the  statute  in  such  case  made  and  provided,  she  the  said  M. 
is  deemed  to  be  guilty  of  the  crime  of  polygamy ;  and  so  the  jurors 
aforesaid,  on  their  oatii  aforesaid,  do  present  and  say,  that  said  M.  M. 
in  manner  and  form  aforesaid  and  at  the  time  and  place  aforesaid,  at, 
&c.,  did  commit  the  crime  of  polygamy,  against,  &.C.,  and  contrary, 
&c.     {^Conclude  as  in  book  1,  chap.  3). 

Bigamy  in  Neiv  Yurh. 

That  A.  B.,  late  of,  &c.,  yeoman,  on,  6z;c.,  did  marry  one  C.  D., 
and  her  the  said  C.  D.  did  then  and  there  have  for  his  wife ;  and 
that  the  said  A.  B.  afterwards,  to  wit,  on,  &c.,  with  force  and  arms 
feloniously  did  marry  and  taive  as  his  wife  one  E.  F.,  and  to  the  said 
E.  F.  was  then  and  there  married  (the  said  C.  D.  being  then  and 
there  living,  and  in  full  life),  against,  &c.,  and  against,  &c.  {Conclude 
as  in  book  1,  chap.  3). 

Bigamy  in  Pennsylvania,  against  the  man.{c) 

Tliat  J.  L.,  late,  &c.,  yeoman,  on,  &c.,  at,  &c.,  did  marry  one  M. 
F.,  spinster,  and  her  the  said  M.  F.  then  and  there  had  for  his  wife, 
and  that  the  said  J.  L.  afterwards,  to  wit,  on,  &c.,  with  force  and 
arms,  &c.,  at,  &c.,  feloniously  did  marry  and  to  wife  did  take  one 
E.  R.,  spinster,  and  to  her  the  said  E.  R.  then  and  there  was  mar- 
ried (the  said  M.  F.  his  former  wife  being  then  hving,  and  in  full 
life),  against,  &c.,  and  against,  &c.    {Conclude  as  in  book  I,  chap.  3). 

Bigamy  in  Pennsylvania,  against  the  icoman.{d) 

That  H.  S.,  otherwise  called  H.  I.,  the  wife  of  E.  I.,  late  of,  &c., 
yeoman,  on,  &c.,  being  then  married,  and  then  the  wife  of  the  said 
E.  I.,  with  force  and  arms  at,  &c.,  did  unlawfully  marry  and  take 
to  husband  one  D.  K,,  late  of,  &c.,  yeoman,  and  him  the  said  D.  K., 
did  unlawfully  receive  and  have  as  her  husband,  aforesaid,  the  said 
E.  L,  her  former  husband,  being  then  alive,  contrary,  &c.,  and  against, 
&c.     {Conclude  as  in  book  1,  chap.  3). 

Bigamy  in  North  CaroUna.(e) 

That  T.  N.,  late  of,  &,c.,  on,  &c.,  in,  &c.,  did  marry  one  M.  B., 
spinster,  and  her  the  said  M.  B.  tlien  and  there  had  for  liis  wife,  and 
that  the  said  T.  N.  afterwards,  to  wit,  on,  &c.,  with  force  and  arms 
in,  &c.,  feloniously  did  marry  and  take  to  wife  one  P.  S.,  spinster, 
and  to  her  the  said  P.  S.  then  and  there  was  married,  the  said  M.  B. 
his  former  wife  being  tlien  alive,  and  in  full  life,  in,  &c.,  against,  &c., 
and  against,  &c.     (Conclude  as  in  book  1,  chap.  3). 

'(c)  Drawn  in  ITO.'i,  by  Mr.  Jaredi  Big-crsoll,  then  attorney-general  of  Pennsylvania.. 
(<Z)  Drawn  in  17!)(),  by  Mr.  Bradford,  tlicn  attorney-jreneral. 
(e)  Tiiis  form  was  sustained  in  State  v.  Norman^. 2  Dev.  222. 


BIGAMV,   ADULTERY   A\D  FORNICATIOrf.  583 

Polygamy  under  s.  5  and  6  c.  96  Rev.  Stat.  Vermont,  vhere  both  mar- 
riages were  in  other  states  than  that  in  which  the  oj'ence  is  indicted.^/) 

That  W.  P.,  on,  &c.,  at,  &c.,  did  marry  one  H.  P.,  and  her,  the  said 
H.,  then  and  there  had  for  his  wife,  and  to  her  the  said  H.  then  and 
there  was  married,  and  that  the  said  W.  P.  afterwards,  to  wit,  at,  &.c., 
on,  &c.,  did  marry  and  to  wife  did  take  one  J.  C,  and  to  her  the  said  J. 
C.  then  and  there  was  married;  the^aid  H.,  his  former  wife,  being 
then  and  still  alive  (and  the  said  marrying  and  taking  to  wife  by  the 
said  VV.  of  the  said  J.,  being  unlawful  by  the  laws  of  the  State  of  New 
Hampshire),  and  that  the  said  W.  P.  at,  &c.,  from,  &c.,till  the  finding  of 

(/)  State  V.  Palmer,! 8  Verm.  570.  This  case,  with  the  sheets  of  which  I  have  been 
obligingly  furnished  by  Mr.  Washburn,  the  accomplisiied  reporter  of  the  state,  piesented 
two  iiileresting  points  before  tlie  Supreme  Court. 

The  indictment  was  founded  on  sections  five  and  si.x  of  chapter  ninety-nine  of  there- 
vised  statutes, — vviiich  are  in  these  words  : 

Sect.  5.  If  any  person,  who  has  a  former  husband  or  wife  living,  shall  marry  another 
person,  or  shall  continue  to  cohabit  with  such  second  husband  or  wife  in  this  state  he  or 
she  shall,  except  ia  tlie  cases  mentioned  in  the  following  section,  be  deemed  guilty  of  the 
crime  of  polygamy,  and  shall  be  punished  by  imprisonment,  as  in  the  case  of  adultery. 

Sect.  6.  The  provisions  of  the^preceding  section  shall  not  extend  to  any  person  whose 
husband  or  wife  shall  have  been  continually  beyond  the  sea  or  out  of  the  state  for  .seven 
years  together,  the  party  marrying  again,  not  knowing  the  other  to  be  living  within  that 
lime,  or  to  any  person  who  shall  be,  at  the  time  of  such  marriage,  divorced  by  sentence  or 
decree  of  any  court,  having  ieg.nl  jurisdiction  for  that  purpose,  or  to  any  person  or  persons 
in  case  the  former  marriage  has  or  shall,  by  sentence  of  such  court,  be  declared  null  and 
void,  or  to  any  person  when  the  former  marriage  was  within  the  age  of  consent,  and  not 
afterwards  assented  to. 

"  We  are  of  opinion,"  said  the  court, "  that  the  indictment  is  insufficient.  The  .second 
marriage  being  in  the  State  of  New  Humpsiiire,  of  whose  laws  we  cannot  judicially  take 
notice,  the  res|iondent  committed  no  offence  against  the  laws  of  this  state  by  sucli  mar- 
riage ;  and,  unless  that  marriage  was  unlawful  by  the  laws  of  New  Hampshire,  Jane  Cheney 
t)ecame  his  lawful  wife,  and  perhaps  the  woman,  to  whom  he  was  formerly  married,  by  the 
same  law  ceased  to  be  his  wit'e.  It  could  be  no  offence  in  him  to  cohabit  in  this  state  with 
the  woman  to  whom  he  was  lawfully  married.  There  should,  therefore,  have  been  an  alle- 
gation, that  the  second  marriage,  in  New  Hampshire,  was  unlawful,  or  the  respondent 
committed  no  offence  by  continuing  to  cohabit  with  the  woman  in  this  state.  We  are  of 
opinion,  that  without  such  an  allegation,  the  indictment  cannot  be  sustained.  If  the  second 
marriage  had  been  in  this  state,  inasmuch  as  it  was  illegal,  the  former  wife  being  living 
and  the  lawful  wife  of  the  person  charged,  the  illegality  of  the  second  marriage  would  have 
been  apparent,  and  the  court  could  liave  judicially  recognised  its  illegality. 

"There  is  another  objection  raised  to  the  indictment,  which  we  are  not  disposed  tp  de- 
cide at  this  time,  with  the  limited  means  and  time  which  we  have  for  investigating  it, — 
that  is,  whether  the  indictment  should  not  have  alleged  that  the  respondent  was  not  within 
any  of  the  exceptions  named  in  the  providing  clause. 

"The  general  rule  is,  that  when  the  exceptions  are  contained  in  the  enacting  clan.se,  the 
indictment  nmst  negative  them,  and  state,  that  the  respondent  does  not  come  within  them, 
but  when  they  are  contained  in  a  separate  section,  the  respondent  must  show,  in  defence, 
that  he  comes  within  them.  There  is  certainly  great  plausibility  in  the  argument,  that, 
as  the  exceptions  are  mentioned  in  the  enacting  clause  of  the  fiftli  section,  reteiring  to  the 
next  section  for  the  particulars,  it  should  have  been  alleged  that  the  respondent  was  not 
within  them.     This  point,  however,  is  not  decided. 

"It  may  also  be  worthy  of  some  consideration,  whether  some  farther  legislation  is  not 
necessary  to  provide  for  a  case,  where  both  marriages  are  in  a  foreign  government,  the 
party  continuing  to  cohabit  with  only  one  wife  in  this  state.  It  is  evidently  a  case  not 
specially  provided  for,  although  the  terms  of  the  statute  may  be  broad  enough  to  reach 
such  a  case,  it' the  second  marriasje  was  illegal." 

I  have  inserted  a  clause  in  the  form  in  this  text  to  bring  it  up  to  the  opinion  of  the  Su- 
preme  Court  on  the  first  point.  On  the  second  point  the  current  of  authority,  as  well  as 
the  course  of  practice,  is  to  consider  it  unnecessary  to  negative  the  exceptions  of  tlie  de- 
fondant's  wife  having  been  beyond  sea  for  seven  years,  &,c.,  or  a  divorce  havin"-  been 
granted. 


584  OFFENCES  AGAIXST  SOCIETY. 

tliis  inquisition,  feloniously  did  continue  to  cohabit  with  said  J.,  his 
second  wife,  the  said  H.  his  former  wife,  being  tlieu  and  still  living, 
contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Adultery  in  Massachusetts  under  Rev.  Slat.  130,5.  1,  against  both  parties 
jointly. ig) 

That  C.  E.,  late  of,  &c.,  and  E.  R.  F.,  late,  &c.,  on,  &c.,  at,  &c.,  did 
commit  the  crime  of  adultery  with  each  other,  by  him  the  said  C^E. 
having  then  and  there  carnal  knowledge  of  the  body  of  said  E.  R. 
F.,  and  by  her  the  said  E.  R.  F.  having  carnal  knowledge  of  the  body 
of  the  said  C.  E?,  she  the  said  E.  R.  F.  being  then  and  there  a  married 
woman,  and  having  a  lawful  husband  ahve,  and  not  being  then  and 
there  the  wife  of  said  C.  E.,(//)  against,  &c.,  and  contrary,  &,c.  (Con- 
clude as  in  book  1,  chap.  3). 

Adultery  by  a  married  man  with  a  married  woman,  in  Massachusetts. [i) 

That  A.  B.,  of,  &c.,  yeoman,  on,  &c.,  at,  &c.,  did  commit  the  crime 
of  adultery  with  one  C.  D.,  the  wife  of  one  E.  F.,  by  having  carnal 
knowledge  of  the  body  of  her  the  said  C.  D.,  he  the  said  A.  B.  being 
then  and  there  a  married  man,  and  having  a  lawful  wife  alive,  and 
he  the  said  A.  B.  not  being  married  to  the  said  C.  D.;  and  she  the  said 
C.  D.  being  then  and  there  a  married  woman,  and  the  lawful  wife  of 
the  said  E.  F.,  against,  &c.,  and  contrary,  &c.  [Conclude  as  in  book 
1,  chap.  3). 

Adultery  in  Pennsylvania,  against  the  man.{j) 

That  A.  L.,  of,  &c.,  labourer,  on,  &c.,  at,  &c.,  and  within  the  juris- 
diction of  this  court,  then  and  there  being  a  married  man  and  having 
a  wife  in  full  life,  did  commit  adultery  with  a  certain  C.  S.,  and  a 
bastard  child  on  the  body  of  her  the  said  C.  S.  then  and  there  did  be- 
get, against,  &c.     {^Conclude  as  in  book  1,  chap.  3). 

Same  against  the  woman.{li) 

That  C.  B.,  of,  &c.,  wife  of  J.  B.,  on,  &c.,  at,  &c.,  then  and  there 
being  a  married  woman,  and  having  a  husband  in  full  life,  adultery 
with  a  certain  J.  R.  of  the  same  couruy,  mariner,  did  commit,  con- 
trary, &c.,  and  against,  &c.     {^Conclude  as  in  book  1,  chap.  3). 


ig)  This  method  of  joinder  of  the  e'uilty  agents  was  approved  in  Com.  v.  Elwc^II,  2  Mete. 
190.  It  is  not  necessary,  it  was  held  in  tlie  same  case,  to  allc<re  that  liie  one  party  i<new  the 
other  was  married;  sec  Com.  u.  Call,  21  Pick.  .'510.  The  olfenee  is  completed  by  carnal 
intercourse,  by  a  married  person  with  a  tliird  i)aity,  whether  sucii  thiid  party  be  married 
or  not ;  ih. 

(h)  I'his  allegation  is  essential;  Moore  v.  Com.,  6  Mete.  243. 

(i)  Sec  Com.  v.  Moore,  6  Mete.  243, 

{j)  See  Reed's  Digest.  (k)  lb. 


BIGAMY,  ADULTERY  AXD  FORNICATIOIV.  580 

Agdinsl  an  uncle  and  niece  for  an  incestuous  marriage,  as  a  joint  offence, 
in  Virginia.{l) 

That  W.  T.,  &c.,  on,  &c.,  with  force  and  arms  at,  &c.,  and  within 
the  jurisdiction  of  the  Supreme  Court  of  Law,  holden  in  and  for  the 
said  county  of  ,  unlawfully,  wilfully  and  incestuonsly  did  in- 

termarry with,  and  take  to  be  his  wife,  a  certain  N.  H.,  the  niece  of 
the  said  W.  T.,  being  the  daughter  E.  H,  the  sister  of  the  said  W.  T., 
and  within  the  degrees  prohibited  by  an  act  of  the  general  assembly 
of  Virginia,  entitled  "  an  act  to  regulate  the  solemnization  of  mar- 
riages, prohibiting  such  as  are  incestuous  or  otherwise  unlawful," 
&c.,  and  that  the  said  W.  T.  and  the  said  N.  H.  then  and  there,  from 
the  said,  &c.,  imtil  the  taking  of  this  inquisition,  did  unlawfully,  wil- 
Hngly  and  incestuonsly  continue  to  cohabit  and  live  together  as  man 
and  wife,  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Adultery  in  Korth  Carolina,  against  both  'parties  jointly. {m) 

That  T.  C,  late  of,  &c.,  labourer,  and  A.  W.,  late,  &c.,  spinster,  on, 
&c.,  and  on  divers  other  days  and  times  both  before  and  after  that 
day,  with  force  and  arms  at,  &c.,  unlawfully  did  bed  and  cohabit  to- 
gether without  being  lawfully  married,  and  then  and  there  did  com- 

{l)  Hutchins  t).  Corn,  2  Va.  Cases  332.  Upon  this  indictment  process  issued  against 
both  of  the  said  indictees,  and  was  served  upon  them.  At  tlie  April  term  of  said  court, 
in  the  year  lcl20,  botli  of  the  said  defendants  appeared  and  pleaded  "not  guilty"  to  the  said 
indictment,  on  which  plea,  issue  was  joined,  and  a  jury  was  sworn  to  try  the  same,  which 
found  a  verdict  of"  guilty"  against  both  of  the  said  defendants,  and  the  court  rendered  a 
judgment  accordingly.  To  that  judgment,  the  present  writ  of  error  was  awarded,  upon  a 
suggestion,  that  tlie  said  Nancy  Hutchins  was  not  indicted  for  the  said  otTencc,  because 
the  said  indictment  did  not  state  in  terms  that  she  had  intermarried  with  the  said  William 
Tankersly. 

"And  indeed  it  would  seem  at  first  sight,  that  there  was  an  absence  of  that  certainty  and 
technical  precision  which  the  law  requires  in  criminal  prosecutions.  But,  when  it  is  re- 
collected, tliat  it  was  impossible  that  he  could  have  intermarried  with  her,  unless  she  had 
also  intermarried  with  him,  and  when  upon  an  examination  of  the  act  of  assembly  it  is 
seen  that  the  otfence  is,  in  this  respect,  laid  in  the  very  words  of  the  act,  it  seems  to  all 
tiie  judges  tiiat  there  is  all  the  certainty  which  reason  or  the  law  of  the  case  requires.  The 
judgment  is.  therefore  afRrmed." 

(m)  State  v.  Cowell,  4  Iredell  231.  In  this  case  the  jury  found  the  defendants  guilty  of 
fornication,  but  not  of  adultery.  On  motion  to  the  court  on  behalf  of  the  state,  for  judg- 
ment against  the  defendants,  the  court  below  being  of  opinion  that  the  verdict  of  the  jury 
amounted  to  a  verdict  of  acquittal,  refused  to  render  the  judgment  prayed  for,  and  ordered 
that  the  defcndcUUs  go  witiiout  day. 

From  this  judgment  the  solicitor  for  the  state  prayed  for  an  appeal  to  the  Supreme  Court, 
which  was  granted,  and  in  that  court  the  judgment  was  delivered  by  Ruffin  C  J. :  "  The 
court  is  of  opinion,  that  the  state  is  entitled  to  judgment  against  the  defendants.  In  ordi- 
nary parlance,  adultery  is  an  aogravatcd  species  of  fornication,  both  involving  an  illicit  co- 
liabitation  between  the  sexes,  but  the  latter  is  constituted  where  tiie  parties  are  single,  or 
at  least  one  of  them,  while  the  former  imports  a  violation  of  the  marriage  bed.  It  is  true, 
that  the  signification  of  the  words  as  generally  received,  would  not  be  material  if  it  were 
perceived  tliat  they  were  used  by  the  legislature  in  a  peculiar  and  different  sense,  for  ex- 
ample, as  meaning  precisely  the  same  thing,  instead  of  different  modifications  of  an  ofTence 
of  the  same  general  nature.  But  the  language  of  the  legislature  renders  it  clear,  that  those 
terms  are  used  in  the  statute  according  to  their  common  acceptation.  The  act  begins  with 
the  words  '■the  crimes'  (in  the  plural  number)  'of  fornication  and  adultery,  &c.'  and  con- 
clude by  enacting,  'that  any  person  convicted  of  either  of  the  aforesaid  offences,  shall  be 
fined,  &.C.'  An  acquittal  of  one  is  therefore  not  necessarily  an  arqiiittal  of  the  other  ;  but 
tli>'  parties  may  be  punished  for  that  particular  grade  of  the  ofTcncc  of  which  the  jury 
finds  taein  guilty." 


586  OFrENCES  against  society. 

mit  fornication  and  adultery,  against,  &c.,  and  against, &c.  [Conclude 
as  in  book  1,  chap.  3). 

Fornication  and  bastardy  in  South  Carolina,  against  the  jnan. 

That  A.  B.,  &c.,  a  free  white  woman,  residing  in  the  district  of 
^     in  the  state  aforesaid,  on,  &c.,  at,  &c.,  was  delivered  of  a  female 
bastard  child,  and  that  the  said  bastard  child  is  likely  to  become  a 
burthen  upon  the  district  of  aforesaid.     And  the  jurors  afore- 

said, upon  their  oaths  aforesaid,  do  further  present,  that  one  C.  D.  is 
the  father  of  the  said  bastard  child,  and  has  refused  to  enter  into-re- 
cognizance,  with  two  good  and  sufficient  sureties,  in  the  penal  sum 
of  three  hundred  dollars,  conditioned  for  the  annual  payment  of  twen-. 
ty-five  dollars,  for  the  maintenance  of  the  said  child,  against,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Same  in  Pennsylvania. 

That  A.  B.,  late,  &c.,  on,  &c.,  at,  &c.,  and  within  the  jurisdiction  of 
this  court,  did  commit  fornication  with  a  certain  C.  D.  and  a  male 
bastard  child  on  the  body  of  her  the  said  then  and  there  did 

beget,  contrary,  &c.,  and  against,  &c.  (Conclude  as  in  book  \,  chap.  3). 

Same  against  a  woman.{n) 

That  M,  S.,  of  the  County  of  Philadelphia,  spinster,  on,  &c.,  at,&c., 
and  within  the  jurisdiction  of  this  court,  did  commit  fornication  with 
a  certain  J.  L.  and  did  permit  the  said  J.  L.  then  and  there  to  beget 
a  male  bastard  child  on  the  body  of  the  same  M.  S.,  contrary,  &c. 
{Conclude  as  in  book  1,  chap.  3). 


(n)  Mr.  Ingraham,  of  Philadelphia,  has  been  good  enough  to  furnish  me  with  an 
indictment  for  an  offence,  which  though  properly  fnlHng  under  conspiracy,  may  be  con- 
sidered, so  far  as  the  act  attempted  is  concerned,  under  the  present  chapter.  The  form, 
it  is  said,  was  sustained  after  conviction,  in  Phihidclphia,  about  the  year  1700. 

"That  M.  S,  C.  S.  and  R.  K.,  &.c.,  being  persons  of  wicked  and  depraved  minds,  and 
wliolly  lost  to  a  due  .sense  of  decency,  morality  and  religion,  on,  »fcc.,  did,  with  force  of 
arms  at,  &c.,  unlawfully  and  immorally,  amongst  themselves,  conspire,  combine,  confede- 
rate and  agree  together  to  bring  into  contempt  the  holy  estate  of  matrimony,  and  the  duties 
enjoined  thereby,  and  to  corrupt  the  morals  of  his  majesty's  liege  subjects,  and  to  encou- 
rage a  state  of  adultery,  wickedness  and  deliaucliery ;  and  that  they  did,  according  to  said 
conspiracy,  &c.,  on,  (fcc,  in  and  near  certain  public  streets  and  highways,  at,  &c.,  in  the 
presence  and  view  of  one  J.  B.,  and  divers  other  liege  subjects  of  his  majesty,  indecently, 
immorally,  unlawfully,  wickedly  and  wilfully,  make  and  carry  into  effect  and  completion 
a  sale  of  the  said  M.  S.  (then  and  there  being  the  lawful  wife  of  the  said  C.  S.),  from  him 
the  said  V>.  S.  to  the  said  f{.  K.,  and  with  the  consent  and  concurrence  of  the  said  M.  S., 
and  by  such  sale  the  said  ('.  S.  disposed  of  and  sold  all  his  marital  rights  of  and  concern- 
ing the  said  i\I.  S.  (and  with  her  consent  and  concurrence),  to  the  said  R.  K.,  for  a  certain 
valuables  consideration,  to  wit,  the  sum  of  one  shilling  and  a  pot  of  beer,"  &.C.  {Conclud- 
ing as  in  conspiracy  at  common  laiv). 


FORESTALLING,   &C.  587 


CHAPTER  X. 

forestalling;  holding  illegal  vendue;  maintenance;  bri- 
bery; CORRUPTION  and  DOUBLE  VOTING  AT  ELECTIONS;  BETTING 
AT  AN  election;  EMBRACERY;  BETTING  AT  A  HORSE  RAQE  ;  RUN- 
NING A  HORSE  AT  A  HORSE  RACE;  WINNING  MONEY  AT  CARDS; 
BREACH  OF  THE  PILOT  LAWS  IN  MASSACHUSETTS. 

Forestalling. {a) 

That  A.  0.,  late  of,  &c.,  yeoman,  on,  &c.,  at,  &c.,  did  buy  and 
cause  to  be  bought  of  and  from  one  A.  S.,  twenty  oxen,  for  the  sum 
of  two  hundred  pounds,  of  current  money  of  New  York,  as  he  the 
said  A.  S.  then  and  there  driving  the  said  twenty  oxen  to  the  market 
of  to  sell  the  said  twenty  oxen  in  the  said  market,  and  before 

the  said  twenty  oxen  were  brought  into  the  said  market,  where  the 
same  should  be  sold,  in  contempt  of  the  laws  of  the  said  state,  to  the 
evil  example  of  all  others  in  the  like  case  offending,  against,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Regrating.{h) 

That  A.J3.,  of,  &,c.,  on,  &c.,  at,  &c.,  in  a  certain  market  there,  call- 
ed the  market,  unlawfully  did  buy,  obtain  and  get  into  his  hands 
and  possession,  of  and  from  one  C.  D.,  a  large  quantity  of  to 
wit,  one  hundred  pounds'  weight  of            at  and  for  the  price  of 
for  each  and  every  pound  of  the  said               and  that  afterwards,  to 
wit,  on,  &c.,  he  the  said  A.  B.,  at,  &c.,  in  the  same  market  there,  un- 
lawfully did  regrate  the  said  one  hundred  pounds'  weight  of 
and  did  then  and' there  sell  the  same  again  to  one  E.  F.,  at  and  for 
the  price  of             for  each  and  every  pound  weight  of  the  said 
with  a  deduction  of            on  the  whole  price  of  tlie  said  one  hundred 

{^)  Offences. — "  Forestalling  is  the  buying^  or  contracting  for  any  species  of  provisions  or 
merchandise  in  the  way  to  market,  dissuading  persons  from  bringing  goods  .thither,  or 
persuading  them  to  enhance  the  price  when  there,  so  that  prices  may  be  raised  in  the 
market;  4  Bla.  Com.  3fi0  ;  see  3  Inst.  53.5.  Regrating  is  tlie  buying  corn  or  other  victual, 
in  any  market,  and  selling  it  again  in  the  same  market,  or  within  four  rnilcs  of  the  same 
market,  wiiich  has  been  supposed  also,  of  necessity,  to  enhance  prices;  ih.  Engrossing 
is  the  buying  up  a  large  quantity  of  any  kind  of  food,  with  a  view  to  sell  asrain,  so  as  to 
engross  and  control  the  market ;  ih.  An  old  statute,  5  and  6  Eck  Vf.  c.  14,  was  directed 
against  the  supposed  otTenccs,  which  were  believed  to  have  a  tendency  to  prevent  the  public 
from  being  supplied  with  the  necessaries  of  life  upon  reasonable  terms.  This  statute  was 
repealed  by  Vi  Geo.  1 1  I.e.  71  ;  yet  the  courts  have  still  considered  forestalling  and  engross- 
ing,  olFences  at  common  law;  R.  v  Waddinirton,  1  East  143;  and  as  to  regrating,  i)ie 
judges  were  equally  divided  ;  R.  v.  Rusliton,  Ilil.  Term,  40  Geo.  III.  It  seems,  however,  that 
at  the  present  day,  acts  of  this  kind  would  not  be  deemed  offences  conducted  to  an  extent 
manifestly  injurious  to  the  puhlic,  or  accompanied  by  circumstances  manifesling  a  direct 
intention  to  do  a  public  injury  ;  see  R.  v.  Webb  and  others,  14  East  4(J6,  and  Pratt  v. 
Hutchinson,  15  East  51 1  ;"  Diekins-on's  Q.  S.  3d0. 

See  for  otiier  forms,  2  Chit.  C  L.  .'i'ii. 

(6)  Davis'  Fiec.  p,  124.     The  quantity  must  be  stated;  1  East  538;  2  Stark.  651, 


588  OFFENCES  AGAINST  SOCIETY. 

pounds'  weight  of  being  allowed  and  thrown  back  by  the  said 

A.  B,  to  \,he  said  E.  F.,  against,  &,c.  {Conclude  as  in  book  1,  chap.  3). 

Engrossing. {c) 

That  A.  B.,  of,  6z:c.,on,&c.,  at,  &c.,  did  unlawfully  engross  and  get 
into  his  hands,  by  buying  of  and  from  divers  persons  to  the  jurors 
aforesaid  unknown,  a  large  quantity,  to  wit,  one  thousand  bushels  of 
wheat,  with  intent  to  sell  the  same  again  for  lucre,  gain  and  at  an 
unreasonable  profit,  against,  &c.     [Conclude  as  in  book  1,  chap.  5). 

Against  a  -person  for  holding  a  vendue  ivithout  authority,  under  the  Penn- 
sylvania statute. 

That  P.  v.,  late  of,  &c,,  on,  &c.,  at,  &c.,  and  within  the  jurisdiction 
of  this  court,  did  expose  to  sale  and  sell  and  cause  to  be  exposed  and 
sold  by  public  vendue  and  outcry,  sundry  goods,  wares  and  merchan- 
dises of  the  value  of  twenty-four  pounds  fifteen  shillings  and  sixpence, 
the  same  goods,  wares  and  merchandises  not  being  taken  in  execution 
and  liable  to  be  sold  by  order  of  law,  neither  taken  nor  distrained  for 
rent  being  in  arrear,  nor  the  said  P.  being  an  executor  or  administra- 
tor, or  selling  the  same  goods  as  the  goods  and  chattels  of  any  testator 
or  intestate,  nor  the  said  P.  V.  being  about  to  remove,  but  the  same 
being  his  own  proper  goods  and  he  remaining  and  abiding,  contrary, 
&.C.,  and  against,  &c.     [Conclude  as  in  book  \,  chap.  3). 

Maintenance.[d) 

That  A.  0.,  late,  &c.,  on,  &.C.,  with  force  and  arms  at,  &c.,  did  un- 
justly and  unlawfully  maintain  and  uphold  a  certain  suit,  which  was 
then  depending  in  the  court  of  the  said  people  of  the  said  state,  before 
their  judges,  between  A.  P.,  plaintiff,  and  A.  D.,  defendant,  in  a  plea 
of  debt,  on  behalf  of  the  said  A.  P.  against  the  said  A_.  D.,  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided,  and  to  the 
manifest  hinderance  and  disturbance  of  justice,  and  in  contempt  of  tlie 
said  peoi)le  of  llie  said  state,  and  to  the  great  damage  of  the  said  A. 
JD.,  and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Attempting  corruptly  to  induce  a  member  of  the  state  House  of  Repre- 
sentatives, vho  iras  one  cf  the  committee  of  banks,  to  aid  in  procuring 
the  recharter  of  a  particular  haul:,  at  common  law.[e) 

That  heretofore,  to  wit,  on,  &c.,  at,  &c.,  and  within  the  jurisdic- 
tion of  this  court,  E.  P.,  being  then  and  there  a  member  of  the  House 

(c)  Davis'  Prec.  p.  124.     Taken  by  Mr.  Davis,  Prcc.  p.  123,  from  2  Chit.  534. 

{(1)  Cotidiictor  GcnLTuli-s  263. 

(e)  Tliis  ir)(Jiclijicnt  was  prosecuted  to  conviction  and  sentence,  in  June,  1846,  by  Mr. 
Kane,  llien  attorney-general,  and  Mr.  M'Allister,  prosecuting  attorney  ibr  Daupiiin 
county. 

3\\<\'^<i  Eldrrd  sharjjcd  the  jury  upon  tlie  law  of  the  case,  in  the  following  words  : 

"  TIk:  (I'IriiilanI  is  indicted  for  brihcry,  or  for  attempting  to  bribe  Victor  E.  Fiolkt,  a 
member  of  thi;  Ictjislaturu  of  Pennsylvania. 

"  Tjie  question  presented  in  lliis  case  is  udiriiUcd   to  be  one  of  great  injpoitancc,  not 


BRIBERY,  (Sec.  589 

of  Representatives  of  the  CominoiiweaUh  of  Pt3nnsylvaiua,  duly 
elected  and  qualified,  certain  petitions  and  other  papers  signed  by 

only  as  it  affocts  the  common iveallli  and  its  citizens,  but  as  it  regards  the  defeadiint  who 
it  appears  has  heretofore  borne  a  good  character.  We  feel  the  responsible  position  in 
which  wc  are  placed  in  this  cause,  for  although  it  may  be  conceded  that  the  jurors  are 
judges  of  the  law  and  the  facts,  we  believe  it  to  be  the  duty  of  the  court,  and  that  we  are 
under  equal  obligations  with  tiie  jury  to  instruct  them  upon  the  law,  that  should  govern 
the  cause,  and  to  aid  them  in  coming  to  a  correct  conclusion  in  relation  to  the  facts,  by 
drawing  their  attention  to  that  part  of  the  evidence  whicli  bears  particularly  on  the  ques- 
tior>.  As  to  the  law,  we  have  no  case  so  far  as  we  have  been  informed.  Where  a  member 
of  parliament  in  England  has  been  indicted  for  bribery,  at  common  law,  nor  have  we  any 
case  in  this  country,  where  a  member  of  a  stale  legislature  has  been  indicted  at  common 
law  for  that  ofl'ence  ;  hence  it  is  that  we  fee!  a  responsibility  in  disposing  of  this  question, 
unusual  as  it  is — indeed  a  new  case. 

"  We  find  the  oticnce  of  bribery  defined  in  4th  Black.  Com.  139,  to  be,  when  a  judge  or 
other  person  connected  with  the  administration  of  justice,  takes  an  undue  reward  to  influ- 
ence his  behaviour  in  office.  It  is  punished  in  inferior  offices  with  fine  and  imprisonment, 
and  in  those  whooffer  the  hribp,thp.  same.  But  in  judges  it  hath  always  boen  looked  u.jon 
as  so  heinous  an  offence,  that  Chief  .lustioe  Thorpe  Was  hanged  for  it,  in  the  reign  of  Ed- 
ward III.  Mr.  Russel,  a  late  writer  on  criminal  law,  says  (2  Russ.  1'2"2),  '  bribery  is  the 
receiving  or  offering  any  undue  reward  by  or  to  any  person  wtiatsoever,  whose  ordinary 
business  relates  to  the  administration  of  public  justice,  in  order  to  influence  his  behaviour 
in  office,  and  incline  him  to  act  contrary  to  the  known  rules  of  honesty  and  integrity.' 

"2  Russ.  124:  'Attempts  to  commit  a  misdemeanor,  being  itself  a  misdemeanor, 
attempts  to  bribe  though  unsuccessful,  have  in  several  cases  been  held  to  be  criminal.' 

"One  of  the  objections  to  a  ccmviction  in  this  case,  is  that  no  person  who  is  not  in  some 
way  connected  with,  and  whose  business  relates  to  the  administration  of  justice,  as 
administered  through  our  courts,  can  be  convicted  of  the  offence  of  bribery,  sucli  as  judges, 
justices,  sheriffs,  itc,  and  this  position  the  defendant's  counsel  contend  is  fully  sustained, 
in  the  above  definitions  of  bribery,  and  cannot  be  extended  to  bribing  or  an  attempt  to 
bribe  a  member  of  the  legislature.  If  this  position  is  correct,  there  is  an  end  to  this  pro- 
secution. It  seems  from  tlie  ancient  definition  of  this  offence,  that  the  person  liable  on 
this  charge  must  be  one  connected  with  the  administration  of  justice,  or  one  whose  ordi- 
nary business  relates  to  the  administration  of  public  justice.  But  the  highest  judicial 
tribunals,  l)oth  in  England  and  this  country,  have  decided  that  the  offence  extends  to  per- 
sons not  immediately  connected  with  tlie  administration  of  justice.  It  has  been  decided 
in  Enirluui,  before  our  revolution,  that  the  offence  of  bribery  can  be  committed  by  any 
person  in  an  official  situation,  who  will  corniptli/  use  the  power  or  interest  of  his  place 
for  rewards  or  promises,  as  in  the  case  of  one  who  was  clerk  to  tlie  agent,  for  French  pri- 
soners of  war,  and  indicted  for  taking  bribes  in  order  to  procure  the  exchange  of  some  of 
them  out  of  their  turn;.  Rex  «.  Beale,  cited  in  Rc\  c.  Gil)bs,  1  East  R.  1^3. 

"  Bribery  at  elections  for  members  of  parliament  was  undoubtedly  always  a  crime  at 
common  law,  and  consequentiv  p^ni'^'iJihle  by  indictment  or  information— 'per  Lord  .Mans- 
field  in  Rox  v.  Pitt,  3  Burr.  1335,  Trinity  Tr.  1767,  and  cited  in  note  to  Black.  179;  and 
though  an  act  of  parliament  was  passed  fixing  certain  penalties  and  punishment  for  this 
offence  of  bribery  at  elections  of  members  of  parliament,  still  it  remained  an  offence  at 
common  law,  and  as  such  was  liable  to  indictment. 

"  It  has  also  been  held  to  be  a  misdemeanor  to  attempt  to  bribe  a  cabinet  minister  and  a 
member  of  the  privy  council  to  give  the  defendant  an  office  in  the  colonies  ;  Vaughan's 
case,  4  Burt.  2494.  This  case  the  counsel  for  the  defendant  insist  supports  their  view  of 
the  question,  inasmuch  as  the  office  that  was  selected  was  one  tiiat  related  to  the  ad. 
ministration  of  justice;  but  it  will  be  noticed  tiiat  the  definition  of  the  offence  on  which 
they  rely,  relates  to  the  person  who  is  liable  to  conviction,  and  not  to  the  office  or  thing 
solicited  or  desired. 

"  Many  other  cases  might  be  referred  to  in  England  on  this  subject  if  it  were  necessary. 
It  is  difficult  to  reconcile  these  cases  with  the  definition  of  the  offence  of  bribery  as  con- 
tended for  by  the  "defendant's  counsel.  They  rather  establish,  and  clearly  so,  that  in 
England,  bribery  was  an  offence  at  common  law,  and  it  extended  to  persons  in  official 
stations  of  areat  trust  and  confidence,  although  their  office  or  business  did  not  relate  to  the 
administration  of  justice  in  these  courts. 

"  I  know  of  but  one  case  for  bribery  tried  in  this  state,  and  that  is  the  case  of  the  U.  S.  «. 
Worrel,  cited  in  2  D.ill  384.  It  was  an  indietmont  at  common  law,  tried  in  the  U.  S. 
Couit  for  the  Pennsylvania  district,  bet'ore  Justices  Chase  and  P'tcrs.  Worrel  was 
indicted  at  common  law  fbr  attempting  to  bribe  Tench  Cox,  a  commissioner  of  the  reve- 

50 


500  OFFENCES  AGAIVST  SOCIETY. 

divers  citizens  of  this  commonwealth,  were  presented  to  the  said 
House  of  KejMesentatives,  in  and  by  which  said  petitions  and  papers 

nue  of  the  United  States,  in  1798.  There  was  no  act  of  congress  nor  statute  of  Pennsyl- 
vania on  this  subject  at  the  time,  and  the  defendant  was  convicted  and  sentenced  under 
the  indictment.  VVorrcl  was  defended  by  eminent  counsel;  he  was  tried  before  judges 
distinguisiicd  as  lawyers.  During  this  investigation  it  was  not  suggested  that  an  attempt 
to  bribe  a  revenue  commissioner,  was  not  an  offence  at  common  law;  nor  was  objection 
lakcn  that  tiie  revenue  commissioner  was  not  an  officer  wliose  duties  or  business  related 
to  the  administration  of  justice  in  our  courts,  and  tiierefore  not  liable  to  indictment  for 
bribery.  On  the  contrary,  it  seems  to  be  conceded  that  tiie  offence  would  be  puuisjiable 
in  our  state  courts  wliich  liad  common  law  jurisdiction,  but  the  objection  was,  that  the 
United  States  courts  had  not  common  law  jurisdiction  ;  tliat  it  was  not  given  to  the  United 
States  courts  expressly  by  the  constitution,  and  that  which  was  not  expressly  given,  was 
reserved  to  the  states,  and  therefore  it  was  tiiat  tiie  states  had  reserved  their  common  law 
powers,  except  such  as  were  expressly  adopted  and  defined  by  an  act  of  congress  in  pur- 
suance of  the  8th  section  of  the  1st  article  of  the  constitution  of  the  United  States,  and  of 
tliis  opinion  was  Judge  Chase. 

"Judge  Peters  was  of  a  different  opinion.  He  observes  'that  the  power  to  punish  mis- 
demeanors  is  originally  and  strictly  a  common  law  power,  and  may  be  constitutionally 
used  by  the  United  States  courts;  and  whenever  an  offence  aims  at  the  corrnption  of  its 
public  officers,  it  is  an  offence  against  the  well-being  of  the  United  States.'' 

"  It  is  not  at  all  material  how  tiiis  difference  of  opinion  between  Justice  Chase  and 
Peters,  in  relation  to  the  common  law  jurisdiction  of  the  United  States  courts,  has  since 
been  settled  ;  it  cannot  affect  this  question  pending  in  this  court. 

'  "If  those  authorities  can  be  relied  on,  the  ground  taken  here  that  an  attempt  to  bribe  a 
member  of  the  legislature  is  not  an  offence,  because  a  member  of  the  legislature  is  not  an 
officer  connected  with,  or  concerned  in  the  administration  of  justice  in  our  courts,  is  quite 
too  narrow  and  limited.  A  member  of  our  legislature  certainly  has  as  much  to  do  with, 
and  his  ordinary  business  relates  as  much  to  the  ^administration  of  public  justice,''  in  the 
language  of  one  of  the  definitions  given,  as  the  clerk  to  the  agent  for  French  prisoners,  or  as 
a  person  who  may  biihe  a  voter  at  an  election  for  members  of  parliament,  or  as  Worrel, 
who  Was  charged  with  attempting  to  bribe  a  commissioner  of  the  revenue  of  the  United 
States. 

"  But  if  it  were  necessary  to  bring  this  case  within  the  words  used  in  the  definition  of 
bribery,  are  we  not  justified  in  saying  that  the  business  of  a  member  of  the  legislature 
sometimes  'relates  to  the  administration  of  public  justice' — if  not  ordinarily  so.  In  the 
case  of  Braddee  v.  Brownfield,  2  W.  &l  S.  278,  Judge  Sergeant  says,  that  'the  exercise  of  a 
certain  sort  of  a  superior  equity  jurisdiction  of"  a  remedial  character;  a  kind  of  mixed 
power,  partly  legislative,  partly  judicial ;  seems  to  have  been  practised  by  our  legislature 
from  time  to  time,  in  the  shape  of  special  laws.' 

"There  are  cases  where  the  legislative  and  judicial  powers  so  commingle,  that  the  exer- 
cise of  a  ccitain  kind  of  judicial  authority  in  the  passage  of  a  law,  is  in  accordance  with 
the  precedents  and  not  contrary  to  received  constitutional  provisions. 

"I  have  given  the  subject  a  careful  examination  and  consideration;  it  is  one  of  vast 
irnportance  to  the  comumnity  and  to  the  individual  concerned,  who  it  appears  has  hereto- 
fore sustained  a  good  character  for  honesty,  integrity  and  morality.  The  offence  charged 
is  one  iiiyhly  injurious  to  public  morals,  and  strikes  at  the  root  of  our  government.  The 
power  to  preserve  itself  is  necessary,  and  I  believe  concomitant  with  its  existence,  and 
through  its  law  tribunals  may  punish  ofiTenccs  of  this  nature  tending  to  obstruct  and  per- 
vert the  due  administration  of  its  affairs.  So  far  as  the  peace  and  quiet  and  happiness  of 
the  people  are  concerned,  it  is  of  as  much  importance  that  the  law-making  power  should 
be  as  free  from  the  imputation  of  corruption,  as  the  judicial  power  who  administers  the 
la'.\s  thus  made.  'J'he  comumnity  have  as  deep  an  interest  in  protecting  the  law-makers 
from  all  corrupt  and  seducing  temj)tationsof  bribes,  as  they  have  the  judges  who  expound 
the  laws. 

"I  am  unwilling,  if  I  had  the  power,  to  extend  tlie  criminal  law  one  step  beyond  its 
known  and  defined  limits,  and  the  argument  so  earnestly  and  ingeniously  urged  by  the 
doft:ndant's  counsel,  that  the  offence  charged  was  not  indictiiblc,  or  there  would  have  been 
some  prec(  dent,  cither  in  England  or  this  country  found,  where  there  was  an  indictment 
ngainst  a  member  of  ])arliament,  or  member  oftiu;  Irgislature,  has  received  due  considera- 
tior),  and  alliioiigh  precedents  and  sinrilar  cases  are  as  stars  to  light  our  way,  in  examining 
(jiif;stif)nH  f)f  lliis  kind,  we  must  not  in  looking  for  them,  lose  sight  of  general  principles, 
nor  give  U[)  llie  [)rinciplc  because  we  cannot  find  a  precedent. 

"That  bribery  was  an  offence  at  common  law,  tliure  can  be  no  question  in  my  mind. 


•  BRIBERY,  &C.  51)1 

certain  charges  and  allegations  were  made  touching  the  conduct  and 
management  of  a  certain  bank,  to  wit,  the  Lehigh  County  Bank, 
being  a  banking  corporation  within  said  commonwealth,  incorpo- 
rated by  and  in  pursuance  of  the  laws  thereof,  and  thereupon  it  was 
by  the  said  House  of  Representatives  committed  and  referred  to  him 
tl:;ie  said  E.  P.,  and  others,  also  members  of  the  said  House  of  Repre- 
sentatives, to  inquire  into  the  truth  of  the  charges  and  allegations  so 
made,  and  to  report  thereon  to  the  said  House  of  Representatives, 
whereby  it  became  and  was  the  duty  of  the  said  E.  P.,  in  his  capa- 
city and  character  of  a  member  of  the  House  of  Re[)resentatives  of 
the  Commonwealth  of  Pennsylvania,  to  inquire  into  the  truth  of  the 
said  charges  and  allegations,  and  to  report  thereon  to  the  said  House 
of  Representatives  as  to  truth  and  justice  might  appertain  ;  and  the 

although  one  of  the  counsel  for  the  defcndent,  if  I  understood  him,  contended  timt  it  was 
not  so  at  the  adoption  of  our  constitution,  and  therefore  the  offence  could  not  he  punished 
except  in  those  cases  where  provision  has  been  made  by  statute.  In  this  he  is  certainly 
mistaken.  We  have  no  statutes  in  Pennsylvania  in  relation  to  bribery  except  at  elections, 
and  bribery  of  jurors.  It  will  hardly  be  seriously  contended  that  a  judge  or  magistrate, 
sheriff  or  constable,  could  not  be  indicted  for  bribery,  althougii  there  is  no  statute  declar- 
ing it  to  be  an  offence;  they  could  be  indicted  at  common  law. 

"  It  has  always  been  iield  in  England  before  the  revolution,  and  by  the  judicial  decisions 
of  this  country  since,  that  the  first  settlers  brought  hither  so  much  of  the  common  law,  as 
was  applicable  to  their  local  situation  and  condition,  and  by  constant  usage  have  adopted 
those  portions  of  the  common  law  of  England  as  tended  to  promote  their  welfare  and 
happiness.  This  much  of  tiie  common  larw,  it  is  teaid  they  claimed  as  their  birth-right; 
and  tills  was  the  opinion  of  Judge  Chase  in  the  case  of  U.  S.  v.  Worrel. 

"  Whilst  our  legislature  recognized  the  common  law  of  England  so  far  as  it  applied  to 
our  local  situation,  they  found  it  necessary  from  the  difficulty  in  carrying  out  the  rules 
of  the  common  law,  or  from  the  inadequacy  of  the  penalties,  or  because  they  were  too 
severe,  to  make  salutary  regulations  in  relation  to  crimes  and  misdemeanors  in  particular 
cases,  and  this  has  been  done  without  interfering  with  the  common  law  remedy;  and 
almost  every  day's  observation  shows,  that  persons  are  indicted  at  common  law,  when 
there  is  a  remedy  provided  by  statute,  and  also  persons  indicted  for  common  law  offences 
when  we  have  no  statute  on  the  subject;  and  it  seems  to  be  well  settled  in  Pennsylvania 
that  whatever  amounts  to  a  public  vjrong  may  be  the  subject  of  indictment. 

"  I  am  of  the  opinion  that  any  person  who  may  corruptly  offer  a  bribe  to  a  member  of 
tlie  legislature  in  order  to  influence  his  behaviour  in  office  and  incline  him  to  act  con- 
trary to  the  known  rules  of  honesty  and  integrity,  is  indictable  at  common  law  in  our 
courts  in  Pennsylvania. 

"  Having  thus  disposed  of  the  law  of  the  case,  we  have  but  little  to  say  in  relation  to 
the  facts  which  more  exclusively  belong  to  the  consideration  of  the  jury.  If  from  the 
evidence  you  are  satisfied  that  the  defendant  corruptly  offered  a  sum  of  money  to  V.  E. 
Piollet,  in  order  to  influence  his  behaviour  while  acting  in  the  capacity  of  a  mcmbi^r  of 
the  legislature,  and  incline  him  to  act  contrary  to  the  known  rules  of  honesty  and  integ- 
rity, the  commonwenlth's  counsel  have  made  out  their  case  against  the  defendant. 

"This  case  has  been  ably  prosecuted,  and  defended  with  great  skill  and  talent,  and  this 
consideration  relieves  the  court  from  the  necessity  of  referring  particularly  to  the  evidence, 
as  it  lias  been  presented  to  the  view  of  the  jury  by  the  counsel  on  both  sides,  in  the  light 
most  favourable  to  the  respective  parties.  Under  this  consideration,  it  is  proper,  perhaps, 
to  say  that  with  the  motives  of  Mr.  Piollet  in  bringing  on  this  exposure,  and  the  means 
resorted  1o  by  him  to  do  so,  we  have  nothing  to  do;  we  neither  endorse  his  course  nor 
condenm  it.  It  is  in  no  way  material  in  this  cause,  further  than  as  it  may  aflcct  his  testi- 
mony in  the  minds  of  the  jury.  It  is  but  justice  to  liim,  however,  to  observe,  that  it  ap- 
pears from  the  evidence  that  Air.  Piollet  at  every  stage  of  his  proceedings  consulted  his 
friends  and  acted  under  their  advice.  It  is  the  intent  and  motive  of  the  defendant  in  this 
cause  that  is  material;  whether  his  motives  were  corrupt,  whether  he  corruptly  offered 
the  money  as  testified  to,  for  the  |)urpose  of  influencing  the  action  of  Air.  Piollet  contrary 
to  his  duty  as  a  member  of  the  legislature,  is  the  main  question  in  the  cause." 

By  the  act  of  March  3,  1847,  Pamph.  p.  217,  passed  on  the  heels  of  the  above  case,  the 
liriliery  of  any  public  officer  is  made  a  felony.  In  all  cases  covered  by  the  act,  the  common 
law  remedy,  so  far  as  Pennsylvania  is  concerned,  is  consequently  abrogated. 


592  OFFENCES  AGAINST  SOCIETY. 

• 

inquest  aforesaid  upon  their  oaths  and  affirmations  aforesaid,  do 
further  present,  that  D.  M'C,  late  of,  &c.,  at,  &c.,  and  within  the 
jurisdiciion  of  this  court,  well  knowing  the  premises,  hut  unlawfully, 
wickedly  and  corruptly  devising,  contriving  and  intending  to  tempt, 
seduce,  bribe  and  corrupt  the  said  E,  P.,  so  being  a  member  of 
the  House  of  Representatives  of  this  commonwealth,  duly  elected 
and  qualified,  and  as  such  engaged  in  inquiring  into  the  truth  of  the 
said  charges  and  allegations,  and  about  to  report  thereon  as  aforesaid, 
to  prostitute,  abuse  and  betray  his  trust,  and  violate  his  duty  as  a 
member  of  the  said  House  of  Representatives,  towards  the  good  peo- 
ple of  this  commonwealth,  he  the  said  D.  M'C,  on,&c.,  at,  &,c.,  and 
within  the  jurisdiction  of  this  court,  with  force  and  arms,  did  wickedly 
and  corruptly  offer  and  give  to  the  said  E.  P.  a  large  sum  of 
money,  to  wit,  the  sum  of  four  hundred  dollars,  in  order  thereby  cor- 
ruptly to  influence,  induce,  persuade  and  bribe  him  the  said  E.  P. 
in  his  capacity  and  character  of  a  member  of  the  House  of  Represen- 
tatives of  this  commonwealth,  to  vote  for,  agree  to  and  make  a  report  in 
regard  to  the  charges  and  allegations,  so  to  him  with  others  by  the 
said  House  of  Representatives  committed  and  referred  as  aforesaid, 
which  report  should  be  in  favour  of  the  Lehigh  County  Bank,  and 
against  the  truth  of  the  said  charges  and  allegations;  to  the  great 
dishonour  of  the  said  E.  P.,  to  the  evil  example,  &c.,  and  against, 
&c.     {Conclude  as  m  book  1,  chap.  3). 

That  the  said  D.  M'C,  yeoman,  on,  &c.,  at,  &c.,  and  within  the 
jurisdiction  of  this  court,  wickedly,  advisedly  apd  corruptly  did 
solicit,  urge  and  endeavour  to  procure  the  said  E.  P.,  he  the  said 
E.  P.  then  and  there  being  a  member  of  the  House  of  Represen- 
tatives of  the  Commonwealth  of  Pennsylvania,  and  a  member  of  the 
said  committee  on  banks,  and  then  and  there  engaged  in  the  dis- 
charge of  his  said  duties  as  aforesaid,  in  inquiring  into  the  truth  of 
the  said  charges  and  allegations,  touching  the  conduct  and  manage- 
ment of  the  said  Lehigh  County  Bank,  to  vote  for,  agree  to  and  make 
a  report  in  said  committee  and  as  a  member  of  said  committee  and  in 
his  character  and  capacity  of  a  member  of  the  House  of  Representatives 
of  the  Commonwealth  of  Pennsylvania,  which  report  should  be  in  fa- 
vour of  the  said  Lehigh  County  Bank,  and  adverse  to  the  said  charges 
and  allegations;  and  in  order  corruptly  to  induce,  influence,  persuade 
and  bribe  him  the  said  E.  P.  to  vote  for,  agree  to  and  make  a  report  as 
aforesaid,  he  the  said  D.  M'C,  then  and  there  well  knowing  the  pre- 
mises, did  wickedly,  advisedly  and  corruptly  offer  and  give  to  the  said 
E.  P.,  a  large  sum  of  money,  to  wit,  the  sum  of  four  hundred  dollars;  and 
the  inquest  aforesaid  u|)on  their  oaths  and  affirmations  albresaid,  do 
further  present,  that  the  said  1).  M'C,  with  like  corrupt  intent  as 
aforesaid,  then  and  there  did  wickedly,  advisedly  and  corruptly  ofler 
and  ))romise  to  pay  to  the  said  E.  P.,  so  as  aforesaid  being  a 
member  of  the  said  House  of  Representatives,  and  a  member  of  the 
said  committee,  and  while  engaged  in  his  said  duties  as  aforesaid, 
one  hundred  dollars  in  addition  to  the  four  hundred  dollars  offered 
and  paid  as  aforesaid,  wlien  the  report  of  the  said  committee  on 
banks  should  be  made  (meaning  when  the  report  of  the  said  com- 
iniilee  toiicliiiig  the  conduct  and  nuuiauetnent  of  the  said  J^ehigli 


BRIBERY,  &C.  503 

Comity  Bank  should  be  made  and  presented  to  the  said  House  of 
Representatives,  which  report  should  be  in  favour  of  the  said  bank, 
and  adverse  to  the  said  charges  and  allegations) ;  to  the  great  dis- 
honour of  the  said  E.  P.,  to  the  evil  example,  &c.,  and  against, 
&c.     (Conclude  as  in  book  1,  chap.  3). 

Endeavouring  to  bribe  a  constahle.{f) 

That  heretofore,  to  wit,  on,  &.C.,  at,  &c.,  one  A.  B.,  Esq.,  then  and 
yet  being  one  of  the  justices  of  the  peace  in  and  for  tlie  county  of 
duly  qualified,  appointed  and  sworn  to  discharge  and  perform 
the  duties  of  said  office,  did  then  and  there  make  and  issue  a  certain 
warrant  under  his  hand  and  seal,  in  due  form  of  law,  bearing  date 
the  day  and  year  aforesaid,  directed  to  any  of  the  constables  of  the 
town  of  in  the  county  aforesaid,  thereby  connnanding  them, 

upon  sight  thereof,  to  take  and  bring  before  him  the  said  A.  B.,  so 
being  such  justice  as  aforesaid,  {or  some  other  justice  of  the  peace 
for  the  said  county  if  such  be  the  warrant),  the  body  of  one  C.  D., 
late,  &c.,  to  answer,  {as  in  the  warrant) ;  and  which  said  warrant 
afterwards,  to  wit,  on,  &c.,  at,  &c.,  was  delivered  to  E.  F.  of,  &c.,  he 
the  said  E.  F.  then  being  one  of  the  constables  of  the  said  town  of 
aforesaid,  duly  appointed  and  qualified  to  discharge  the  duties 
of  said  olfice  of  constable,  to  be  executed  in  due  form  of  law.  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid  do  further  present, 
that  G.  H.,  late  of,  &c.,  well  knowing  the  premises,  but  contriving 
and  unlawfully  intending  to  pervert  the  due  course  of  law  and  justice, 
and  to  prevent  the  said  C.  D.  from  being  arrested  and  taken  under 
and  by  virtue  of  the  warrant  aforesaid,  afterwards,  to  wit,  on  the  day 
and  year  aforesaid,  at,  &.C.,  unlawfully,  wickedly  and  corruptly  did 
offer  unto  the  said  E.  F.,  so  being  constable  as  aforesaid,  and  having 
in  his  custody  and  possession  the  said  warrant  so  delivered  to  him  to 
be  executed  as  aforesaid,  the  sum  of  dollars,  if  he  the  said  E. 

F.  would  refrain  from  executing  the  said  warrant  and  from  taking 
and  arresting  the  said  C.  D.  under  and  by  virtue  of  the  same  warrant, 
for  and  during  fourteen  days  from  that  time,  that  is  to  say,  from  the 
time  he  the  said  G.  H.  so  off'ered  the  said  sum  of  to  the  said  E. 

F.  as  aforesaid ;  and  so  the  jurors  aforesaid,  upon  their  oath  afore- 
said do  say,  that  the  said  G.  H.  in  manner  and  form  aforesaid  did 
attempt  and  endeavour  to  bribe  the  said  E.  F.,  so  being  constable  as 
aforesaid,  to  neglect  and  omit  to  do  his  duty  as  such  constable  and  to 
refrain  from  taking  and  arresting  the  said  C.  D.  under  and  by  virtue 
of  the  warrant  aforesaid;  against,  &c.  {Conclude  as  in  hook  1, 
chajj.  3). 

Bribery  of  a  judge  of  the  United  States,  on  the  act  of  April  30,  1790, 
s.  2\.{g) 

That  A.  B.  of,  &c.,  on,  &c.,  at,  &c.,  within  the  district  aforesaid, 
did  give  to  one  C.  D.  of,  <Slc.,  he  the  said  C.  D.  being  then  and  there 

(/)  Taken  by  Mr.  Davis,  Free.  78,  from  Arch.  C.  P.  329.  (a)  Davis'  Free.  79. 

50* 


594  OFFENCES  AGAINST  SOCIETY. 

a  judge  of,  [here  insej^t  the  style  of  the  court),  duly  and  legally 
appointed  and  qualified  to  discharge  the  duties  of  that  office,  the  sum 
of  dollars  as  a  bribe,  present  and  reward,  to  obtain  and  procure 

the  opinion,  judgment  and  decree  of  him  the  said  C.  D.  in  a  certain 
suit,  {controversy  or  cause),  \\\en  and  there  depending  before  him  the 
said  C.  D.  as  judge  as  aforesaid  of  the  said  court,  to  wit,  {here  state 
the  nature  of  the  suit) ;  the  said  office  of  judge  of  the  said  court 
being  then  and  there  an  office  and  trust  concerning  the  administra- 
tion of  justice  within  the  said  United  States;  against,  &,c.,  and  con- 
trary, &c.     {Conclude  as  in  book  1,  chap.  3). 

Against  a  justice  of  the  Court  of  Common  Pleas  for  acceptivg  a  hrihe.{li) 

That  A.  B.  of,  &c.,  esquire,  on,  &c.,  at,  &c,,  in  the  county  aforesaid, 
was  one  of  the  justices  of  the  Court  of  Common  Pleas,  &c.,  {here 
state  the  style  of  the  court),  duly  and  legally  appointed,  qualified 
and  sworn  to  discharge  and  perform  the  duties  of  that  office ;  the 
same  being  an  office  of  importance  and  trust  concerning  the  admin- 
istration of  justice  within  this  commonwealth ;  and  that  the  said  ,A. 
B.,  being  then  and  there  such  justice  of  said  Court  of  Common  Pleas 
as  aforesaid,  contriving  and  intending  the  duties  of  his  said  office  and 
the  trust  and  confidence  thereby  reposed  in  him  to  prostitute  and 
betray,  did  then  and  there  unlawfully  and  corruptly  accept  and 
receive  of  one  C.  D,  the  sum  of  dollars  as  a  bribe  and  pecuniary 

reward,  to  influence  and  induce  him  the  said  A.  B.  to,  {here  state  the 
facts  relative  to  the  subject-matters  of  the  bribe) ;  and  that  he  the 
said  A.  B.  did  thereby  unlawfully,  wilfully  and  corruptly  prostitute, 
violate  and  betray  for  the  bribe  and  pecuniary  reward  aforesaid,  so 
as  aforesaid  by  him  the  said  A.  B,  in  his  said  office  taken,  accepted 
and  received,  the  duties  of  his  office  and  the  trust  and  confidence  in 
him  therein  and  thereby  reposed  ;  to  the  great  scandal,  dishonour  and 
prostitution  of  the  public  justice  of  said  commonwealth,  and  against, 
&c.     {Conclude  as  in  book  1,  chajj.  3). 

Corrupt  interference  with  an  election.     First  count,  offering  money  to  a 
voter  to  vote  for  a  particular  member  of  'parliament.{i) 

That  before  and  at  the  time  of  the  committing  of  the  offences  here- 
inafter mentioned,  to  wit,  on,  &c.,  the  borough  of  was  and  still 
is  a  borough  electing,  sending  and  returning  two  members  to  serve 
for  the  said  borough  in  the  parliament  of  the  united  kingdom  of 
Great  Britain  and  Ireland,  to  wit,  at  aforesaid  in  the  county 
aforesaid;  and,  &c.,  that  before  the  committing  the  several  offences 
hereinafter  mentioned,  to  wit,  on,  &c.,  at,  &c.,  an  election  of  a  mem- 
ber to  serve  in  the  parliament  of,  &c.,  as  one  of  the  members  for  the 
said  borough  of  was  expected  shortly  to  be  had  and  made, 
which  said  expected  election  afterwards,  to  wit,  on,  &c.,  at,  &c.,  was 
had  and  made ;  and,  &c.,  that  S.  L.,  late,  &c.,  harness-maker,  unlaw- 

(//)  Taken  by  Mr.  Davis,  Prec.  75,  from  4  Bla.  Com.  139  ;  3  Inst.  147;  Rex  v.  Vaugli- 
an,  4  Rnrr.  2300;  2  Cliit.  C.  L.  6«1. 

(i)  Cole  on  Crim,  Informations,  2d  Part,,  187... 


BuiBERV,  Slc.  595 

fully,  wickedly  and  corruptly  intending  to  hinder  and  prevent  the 
free  and  indifferent  election  of  a  member  to  serve  in  the  parliament^ 
ttc,  for  the  said  borough  of  and  by  illegal  and  corrupt  means 

to  procure  J.  H.  S.,  Esq.,  commonly  called  tlie  Hon.  J.  H.  S.  (who 
before  and  at  the  time  of  the  said  election  was  a  candidate  to  repre- 
sent the  said  borough  of  in  the  said  parliament,  to  be  elected 
a  member  to  serve  in  the  said  parliament,  &c.,  for  the  said  borough 
of  did  on,  &c.,  in,  &c.,  unlawfully,  wickedly  and  corruptly  pro- 
mise to  one  G.  S.  (he  the  said  G.  S.  then  and  there  and  before  and 
at  the  time  of  the  said  expected  election  claiming  a  right  to  vote  at 
the  election  of  a  member  or  members  as  the  case  might  be,  to  serve 
in  the  said  parliament,  &c.,  for  the  said  borough  of  a  large  sum 
of  money,  to  wit,  the  sum  of  nine  pounds  as  a  gift,  bribe  and  reward 
to  him  the  said  G.  S.  to  engage,  corrupt  and  procure  the  said  G.  S.  to 
give  his  vote  at  the  said  expected  election  of  a  member  to  serve  in 
the  said  parliament  for  the  said  borough  of  for  the  said  J.  H.  S. 
so  being  such  candidate  as  atbresaid,  that  the  said  J.  H.  S.  might  be 
elected  at  the  said  election  to  serve  in  the  said  parliament  for  the  said 
borough  of  and  thereupon,  afterwards,  to  wit,  on»  &c.,  at,  &c., 
the  said  S.  L.  did  in  pursuance  and  fulfilment  of  the  said  promise, 
unlawfully,  wickedly  and  corruptly  give  and  cause  and  procure  to  be 
given  to  the  said  G.  S.  a  large  sum  of  money,  to  wit,  the  said  sum  of 
nine  pounds,  as  a  gift,  bribe  and  reward  to  the  said  G.  S.,  in  order  and 
with  intent  to  induce,  procure  and  corrupt  the  saidG.  S.  by  means  of 
the  said  gift,  bribe  and  reward,  to  give  his  vote  for  the  said  J.  H.  S. 
at  the  said  expected  election  of  a  member  to  serve  in  the  said  parlia- 
ment for  the  said  borough  of  that  he  the  said  J.  H.  S.  might  be 
chosen  and  returned  at  the  said  election  to  serve  in  the  said  parlia- 
ment for  the  said  borough;  to  tlie  great  obstruction  and  hinderance 
of  the  freedom  of  election  of  a  member  to  serve  in  the  said  parlia- 
ment for  the  said  borough,  to  the  evil  example,  &c.,  and  against,  &c. 
[Conchide  as  in  book  1,  chap.  3). 

Second  count.     JctnaJhj  gluing  a  bribe. 

That  the  said  S.  L.  further  unlawfully,  wickedly  and  corruptly 
contriving  and  intending  as  aforesaid,  did  afterwards,  to  wit,  on,  &c., 
last  said,  at,  &c.,  the  said  election  being  then  and  there  so  expected 
as  in  the  first  count  of  this  information  mentioned,  unlawfully,  wick- 
edly and  corruptly  give  and  cause  and  procure  to  be  given  to  the  said 
G.  S.,  he  the  said  G,  S.  then  and  there  and  before  and  at  the  time 
of  the  said  first  count  mentioned,  claiming  a  right  to  vote  at  the 
election  of  a  member  or  members,  as  the  case  might  be,  to  serve  in 
the  parliament,  &.C.,  for  the  said  borough  of  a  large  sum  of 

money,  to  wit,  the  sum  of  nine  pounds,  as  a  gift,  bribe  and  reward 
to  him  to  engage,  corrupt  and  procure  the  said  G.  S.  to  give  his  vote 
at  the  said  expected  election  of  a  member  to  serve  in  the  said  parlia- 
ment for  the  said  borough  for  the  said  J.  H.  S.,  who  was  then  and  there 
and  before  and  at  the  time  of  the  said  election  so  then  expected  as 
aforesaid,  a  candidate  to  represent  the  said  borough  in  the  said  parlia- 
ment, &,c.,  that  he  the  said  J.  H.  S.  might  be  chosen  and  returned  to 
serve  in  the  said  parliament  for  the  said  borough,  to  the  great  obstruc- 
tion and  hinderance  of  the  freedom  of  the  said  expected  election  of  a 


506  OFFENCES  AGAINST  SOCIETY. 

member  of  parliament  for  the  said  borough,  to  the  evil  example,  &c., 
and  against,  &.c.     [Conclude  us  in  book  \,  cliap.  3). 

Illegal  voting  under  Rev.  Stat.  c.  4.     Fij^st  count,  Rev.  Stat.  c.  4,  s.  6.(y) 

That  A.  C,  &c.,  on,  &c,,  at,  &c.,  at  a  town  meeting  of  the  inhabit- 
ants of  said  T.  at  the  election  of  governor  and  lieutenant-governor  of 
said  commonwealth  and  of  senators  for  the  district  of  Middlesex  in 
said  commonwealth,  tlien  and  there  duly  holden,  well  knowing  him- 
self not  to  be  a  qualified  voter,  did  wilfully  give  in  a  vote  for  the 
officers  aforesaid,  being  the  officers  to  be  chosen;  against,  &c.  [Con- 
clude as  in  book  1,  chup.  3). 

Second  count. 

That,  &c,,  on,  &c.,  at,  &.C.,  at  another  town  meeting  of  the  inhab- 
itants of  said  T.,  at  the  election  of  governor  and  lieutenant-governor 
of  said  commonwealth  and  for  senators  for  the  district  of  Middlesex, 
being  then  and  there  inquired  of  by  the  selectmen  of  T,,  presiding  at 
said  meeting  and  election,  whether  he  the  said  defendant  had  paid  any 
tax  within  any  town  or  district  in  this  state,  to  wit,  the  commonwealth 
aforesaid,  did  then  and  there  wilfully  give  a  false  answer  to  said 
selectmen,  namely,  that  he  the  said  defendant  had  paid  a  tax  assessed 
upon  him  in  the  City  of  Lowell  in  said  county,  within  two  years  next 
y)receding  said  election,  to  wit,  a  tax  assessed  to  him  in  said  Lowell 
in  the  year  eighteen  hundred  and  forty ;  whereas  in  truth  and  fact 
said  defendant  had  not  paid  any  such  tax  so  assessed  upon  him  in 
said  Lowell  in  the  year  eighteen  hundred  and  forty;  and  the  said 
inquiry  was  then  and  there  made  of  said  defendant  for  the  purpose 
of  ascertaining  his  right  to  vote  at  said  election,  and  said  false  answers 
were  returned  by  him,  he  said  defendant  then  and  there  fraudulently 
intending  to  procure  his  name  to  be  inserted  on  the  voters'  list  of  said 
town  and  to  obtain  permission  then  and  there  to  vote  at  said  election  ;• 
against,  &c.     [Conclude  us  m  book  1,  chap.  3). 

Giving  double  vote ;  misdemeanoi'  at  common  laio.{k) 
That  of  the  county  aforesaid,  on,  &c.,  at,  &c,,  being  admitted 

(j)  No  technical  exceptions  were  taken  to  cither  of  these  counts  in  Com.  v.  Shaw,  7 
Mete.  52.  A  new  trial  was  granted,  liowevcr,  with  tiie  understanding-  that  if  tlie  attorney- 
jreneral  siiouid  enter  a  voile  prusnjui  on  tlie  second  count,  judjrrnent  should  be  entered  on 
the  first,  it  ujipcaring  that  one  of  the  allegations  in  the  second  count  was  not  sustained 
by  tlie  evidence. 

(k)  This  count,  which  in  Com.  v.  Silsbee,  9  Mass.  417,  was  held  sufficiently  to  set  forth 
an  offence  at  common  law,  is  in  several  respects  inartificially  drawn.  Perhaps  it  would 
have  been  belter  to  have  charged  S|)ecifically  that  the  defendant  gave  two  votes,  or  three 
voles,  instead  of  saying  generally  that  he  gave  more  than  one.  It  is  not  straining  a  great 
deal  to  imagine  a  case  iri  which  "  more  than  one"  does  not  amount  to  two.  The  conclu- 
sion, "and  the  law  of  the  same,"  &,c.,  was  meant,  as  appears  from  the  argument,  to  refer 
to  the  common  law  and  not  to  any  particular  statute;  and  if  so,  it  is  supeifluous.  As 
a  statutory  conclusion,  on  the  other  hand,  it  is  unteclmical  and  insufficient;  (^om.  v.  Stock- 
bridge,  II  Mass.  279.  These  .defects,  however,  may  be  considered  as  mere  sur[)lusage, 
and  not  only  is  the  offence  set  forth  with  substanlia!  accuracy,  but  the  validity  of  the 
indictment  itself  as  a  precedent  has  been  settled  by  the  Supreme  Court.  In  those  states, 
however,  where  double  voting  is  punishalile  by  statute,  the  common  law  may  be  considered 
as  mergcjtl  in  the  statutory  penally,  and  such  is  clearly  the  case  in  Tcnnsylvania  under  the 
act  of  21st  March,  1806,  s.  13;  Wh.  C.  L.  7. 


ILLEGAL  VOTING EMBRACERY,  &C.  597 

as  a  legal  voter  at  the  town  meeting  holden  on  the  day  and  year 
aforesaid,  at  Salem  in  the  said  commonwealth,  for  the  choice  of  town 
officers,  did  then  and  there  wihully,  fraudulently,  knowingly  and  de- 
signedly give  in  more  than  one  vote  for  the  choice  of  selectmen  for 
said  town  of  Salem  at  one  time  of  balloting,  to  the  great  destrnction 
of  the  freedom  of  elections,  to  tlie  great  prejudice  of  the  rights  of  the 
other  qualified  voters  in  said  town  of  Salem,  to  the  evil  example, 
&.C.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Emhracery  hy  persuading  a  juror  to  give  his  verdict  in  favour  of  the 
defendant  and  for  soliciting  the  other  jurors  to  do  the  UJie.{J) 

That  A.  B.  of,  &c.,  on,  &c.,  at,  &c.,  knowing  that  a  certain  jury  of 
the  said  County  of  B.  was  then  duly  returned,  imparmeled  and  sworn 
to  try  a  certain  issue  joined  in  the  Supreme  Judicial  Court  then  held 
and  in  session  according  to  law,  at  B.  aforesaid,  in  and  for  the  said 
County  of  B.,  between  C.  D.  plaintiff,  and  E.  F.  defendant,  in  a  plea 
of  the  case ;  and  then  also  knowing  that  a  trial  was  to  be  had  upon 
the  said  issue,  on,  &c.,  before  the  said  Supreme  Judicial  Court  then  and 
there  held  for  the  said  County  of  B.,  he  the  said  A.  B.  wickedly  and 
unlawfully  intending  and  devising  to  hinder  a  just  and  lawful  trial  of 
the  said  issue  by  the  jurors  aforesaid  returned,  impanneled  and 
sworn  as  aforesaid  to  try  the  said  issue,  on,  &c.,  at,  &c,,  unlawfully, 
wickedly  and  unjustly  on  behalf  of  the  said  E.  F.,  the  defendant  in 
the  said  cause,  did  solicit  and  persuade  one  G.  H.,  one  of  the  jurors  of 
the  said  jury  returned,  impanneled  and  sworn  according  to  law  for 
the  trial  of  said  issue,  to  appear  and  attend  in  favour  of  the  said  E.  F., 
the  said  defendant  in  the  said  cause,  and  then  and  there  did  utter  to 
the  said  G.  H.,  one  of  the  jurors  as  aforesaid,  divers  words  and  dis- 
courses by  way  of  commendation  on  behalf  of  him  the  said  E.  F., 
the  said  defendant,  and  in  disparagement  of  the  said  C.  D.,  the  plain- 
tiff; and  that  he  the  said  A.  B.  did  then  and  there  unlawfully  and 
corruptly  move  and  desire  the  said  G.  H.  to  solicit  and  persuade  the 
other  jurors  returned,  impanneled  and  sworn  to  try  the  said  issue,  to 
give  a  verdict  for  the  said  E.  F.,  the  defendant  in  the  said  cause,  he 
the  said  A.  B.  then  and  there  well  knowing  that  the  said  G.  H.  was 
one  of  the  jurors  returned,  impanneled  and  sworn  to  try  the  said 
issue;  and  that  the  jurors  of  said  jury  by  reason  of  speaking  and 
uttering  the  words  and  discourses  aforesaid,  did  then  and  there,  to 
wit,  &c.,  give  their  verdict  for  the  said  E.  F.  the  said  defendant  in  the 
cause  aforesaid;  against,  &c.     [Conclude  as  in  book  \,chap.  3.) 

(/)  Davis'  Prec.  113.  "  Tliis  precedcntis  taken,"  says  Mr.  Davis,  "in  substance,  from 
a  similar  precedent  in  Trem.  P.  C.  176,  and  is  the  only  one  to  be  met  witli  either  in  that 
collection  or  in  Coke's  Entries,  Chit.  C  L.,  Stark.  C.  P.,  Cro.  C.  C.  or  Cro.  C.  A.  There 
are  two  other  precedents  in  an  ancient  book  containing  precedents  of  indictments,  infor- 
mations, &,c.,  entitled  'Olliciiim  Cleiici  Pacis.' 

"The  last  allegation  in  this  precedent,  viz.  that  tlie  jury  gave  their  verdict  for  defendant 
by  reason  of  the  solicitations,  &,c.,  is  not  necessary.  The  crime  is  complete  by  the  attempt, 
whether  it  succeed  or  not ;  Hawk.  b.  1,  c.  85,  s.  ]  and  2,  and  authorities  there  quoted." 


598  OFFEiVCES  AGAINST  SOCIETY. 

Betting  at  an  eIection.{in) 

That  D.  S.,  late,  &c.,  on,  &c.,  at,  &c.,  and  within  the  jurisdiction  of 
this  court,  did  lay  a  wager  and  bet  with  a  certain  J.  C,  and  that  the 
said  D.  S.  did  then  and  there  lay  a  wager  and  bet  of  fifty  dollars 
with  the  said  J.  C,  that  a  certain  J.  R.  would  be  elected  governor  of 
the  Commonwealth  of  Pennsylvania  at  an  election  to  be  held  in  said 
commonwealth  under  the  constitution  and  laws  of  said  common- 
wealth, on,&c.,  the  said  J.  R.  then  and  there  being  a  candidate  nomi- 
nated for  public  office,  to  wit,  for  the  office  of  governor  of  said  com- 
monwealth; contrary,  &c.,  and  against,  &c.  {Conclude  as  in  book 
1,  chap.  3). 

Betting  on  a  horse-race. {n) 

That  B.  H.  P.,  late,  &c.,  heretofore,  to  wit,  on,  &c.,  at,  &c.,  unlaw- 
fully did  bet  two  dollars  with  a  person  to  the  jurors  unknown,  upon 
a  horse-race,  which  said  horse-race  was  not  run  upon  a  path  or  track 
made  or  kept  for  the  purpose  of  horse-racing.  And  the  jurors  afore- 
said, upon  tlieir  oaths  aforesaid,  do  further  present,  that  B.  H.  P.,  late 
of  the  said  county,  on,  &c.,  at,  &c.,  did  bet  and  wager  bank  notes, 
being  valuable  things,  with  a  person  to  the  jurors  unknown,  upon 
said  horse-race,  which  said  horse-race  was  not  run  upon  a  track  or 
path  made  or  kept  for  the  purpose  of  turf-racing,  contrary,  &c.,  and 
against,  &.c.     {Conclude  as  in  book  1,  chajj.  3. 

Entering  and  running  a  horse  at  a  horse-race. [6) 

That  H.  H.,  late  of,  &c.,  yeoman,  little  regarding  the  laws  and  acts 
of  assembly  of  this  commonwealth,  and  not  fearing  the  pains  and 

(m)  Sherban  v.  Com.,  8  Watts  213.  The  objection  to  this  indictment  was,  that  it  did 
not  state  positively  that  there  was  an  election  pending-.  "  We  tliink  the  fair  implication 
is,"  said  Sergeant  J.,  "  not  only  that  such  bet  was  made,  but  tliat  the  election  was  to  be 
held  at  that  time." 

(rt)  Tiiis  count  was  sustained  in  State  v.  Posey,  1  Humpli.  301. 

"The  act  of  1820,  c.  5,  exemjits  tuif-rucing-  from  the  penalties  inflicted  by  the  statutes 
against  gaming.  Matcli  races  for  short  distances  not  being  regarded  by  sportsmen  as 
turf-racing,  the  exemption  in  this  act  was  not  considered  as  extending  to  such  races.  The 
act  of  183.'j,  c.  10  (("omp.  Stat.  3fJ0),  explanatoiy  of  the  act  of  1820,  c.  5,  declares  tiiat  all 
horse-racing,  without  regard  to  the  distance  wiiicli  may  be  run,  wiicre  tlie  same  is  run 
upon  a  tracii  or  patii  made  or  kept  for  the  pur])ose  of  horse-racing,  shall  be  deemed  turf- 
racing,  within  the  meaning  of  the  acts  of  assembly  of  tliis  slate."  This  latter  act  evi- 
dently intended  to  ciiange  the  law  as  it  stood  only  as  it  regards  the  distance  which  may 
be  run.  It  excepts  only  a  quarter  of  a  mile  turf-racing,  but  it  does  not  exempt  them 
from  the  penalties  of  the  acts  against  gaming,  imhjss  tlicy  be  run  "upon  a  track  or  path 
made  or  kept  for  the  jiurposc  of  horse-racing."  'I'he  indictment  in  tliis  case  alleges  tliat 
the  race  was  not  run  on  a  "track  made  and  kept  tor  horsc-raeing ;"  it  is  therefore  not 
within  the  exemptionof  the  act  of  1H33,  and  eonse(punlIy  is  indictable  as  though  tiie  act 
h:id  not  passed.  The  legislature  never  intended  to  tolerate  jjorse-races  gotten  up  and  run 
at  distilleries,  grog  shoi)s  and  nuisters,  where  crowds  of  excited,  intoxicated  persons  would 
render  it  alike  dangerous  and  demoralizing.  Indeed  the  j)olicy  of  the  exemiition  of  horse- 
racing  from  the  penalties  of  the  statutes  against  gaming,  may  in  all  cases  be  regarded,  as 
f|ue.stionalile;  and  it  is  the  duly  of  the  courts  to  cf)nstruc  these  statutes  so  as  to  supi)ress 
tiic  mischief  of  gaining,  and  consequently  to  e.\.cmpt  such  only  as  fall  within  the  express 
provisions  of  the  law." 

(o)   Diawn  by  Willi. an  Bradford,  Esq.,  the  then  attorney  general  of  tliis  eonnnonweallh. 


BETTLVG,  &C.  599 

pennlties  therein  contained,  on,  &c.,  with  force  and  arms  at,  &c.,  and 
within  the  jurisdiction  of  this  court,  unlawfully  did  enter,  start  and 
run  for  the  sum  of  four  thousand  dollars,  a  certain  horse  to  him  the 
said  H.  H.  belonging,  and  did  then  and  there  lay,  bet  and  wager  the 
sum  of  four  thousand  dollars  upon  his  said  horse  so  entered,  started 
and  run  as  aforesaid,  to  the  evil  example,  &c.,  against,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Winning  money  at  cai'ds.{p) 

That  H.  H.  and  B.  L.,  being  persons  of  evil  name  and  fame  and 
dishonest  conversation  and  not  caring  to  get  their  hvelihood  by  honest 
labour,  but  by  fraud  and  deceit  maintaining  their  idle  course  of  life, 
on,  &c.,  at,  &c.,  and  within  the  jurisdiction  of  this  court,  at  an  unlaw- 
ful game,  artifice  and  practice  at  cards,  and  by  laying  wagers  with  one 
B.  C,  relating  to  the  playing  of  cards,  did  fraudulently  and  deceitfully 
by  means  of  win,  obtain  and  get  to  themselves  of  and  from  the 

said  B.  C.  twenty  dollars,  of  the  goods  and  chattels  of  the  said  B.  C, 
and  him  the  said  B.  C.  of  his  goods  and  chattels  aforesaid  then  and 
there  fraudulently  and  deceitfully  in  manner  and  form  aforesaid  de- 
ceive and  defraud,  to  his  great  damage,  contrary,  &c.,  and  against,  &:c. 
{Co7iclude  as  in  book  1,  chap.  3). 

Breach  of  pilot  laics  in  Massachusetts. 

That  B.  F.  R.,  of,  &c.,  mariner,  at,  &c.,  on,  &c.,  he  the  said  R.  then 
and  there  being  a  person  not  having  a  branch  commission  or  warrant 
as  ar  pilot  or  pilot's  apprentice,  for  the  harbour  of  Boston  aforesaid, 
did  undertake  to  pilot  into  the  harbour  of  Boston  aforesaid,  a  certain 
foreign  vessel  called  the  barque  Empress,  being  a  vessel  of  the  burthen 
of  more  than  two  hundred  tons,  and  coming  from  the  port  of  New 
York  in  the  State  of  New  York,  and  not  from  a  port  in  the  State  of 
Massachusetts,  and  not  being  a  fishing  vessel  and  not  being  a  public 
ship  belonging  to  the  United  States  of  America,  nor  a  ship  of  war,  but 
a  merchant  ship  vessel,  and  certain  branch  pilots,  to  wit,  {set  forth 
names  of  pilots),  having  otiered  their  services  to  the  master  of  said 
barque  Empress,  said  barque  being  bound  then  into  the  harbour  of 
Boston  aforesaid,  before  said  vessel  had  passed  a  line  drawn  from 
Harding's  Rocks  to  the  outer  graves,  and  from  thence  to  Nahant-head, 
whereby  and  by  force  of  the  statute  in  such  case  made  and  provided, 
he  the  said  B.  F.  R.  hath  forfeited  a  penalty  for  the  said  offence  not 
exceeding  fifty  dollars,  against,  &c.,  and  contrary,  &c.  {Conclude  as 
in  book  1,  chap.  3). 

ip)  Drawn  by  Mr.  Bradford. 


600  OFFEXCES  AGAINST  SOCIETY. 


CHAPTER  XI. 

CHALLENGING  TO  FIGHT. 

Sending  a  challenge  at  common  law.    First  count,  sending  the  letter  con- 
taining the  chaUenge.{a) 

That  J.  S.,  late,  &c.,  gentleman,  being  a  person  of  turbulent  and 
quarrelsome  temper  and  disposition,  and  contriving  and  intending  not 
only  to  vex,  injure  and  disquiet  one  J.  N.  and  do  the  said  J.  N.  some 
grievous  bodily  harm,  but  also  to  provoke,  instigate  and  excite  the 
said  J.  N.  to  break  the  peace,  and  to  fight  a  duel  with  and  against 
him  the  said  J.  S.,  on,  &c.,  at,  &c.,  wickedly,  wilfully  and  maliciously 
did  write,  send  and  deliver,  and  cause  and  procure  to  be  written,  sent 
and  delivered  unto  him,  the  said  J.  W.,  a  certain  letter  and  paper  writ- 
ing containing  a  challenge  to  fight  a  duel  with  and  against  him  the 
said  J.  S.,  and  which  said  letter  and  paper  writing  is  as  follows,  that 
is  to  say,  [here  set  out  the  letter  with  such  innuendoes  as  may  he 
necessary),  to  tlie  great  damage,  scandal  and  disgrace  of  the  said  J. 
N.,  in  contempt  of  our  lady  the  queen,  and  against,  &c.  {Conclude 
as  in  book  1,  chap.  3), 

Second  count.     Proiioking  another  to  fight  a  duel. 

That  the  said  J.  S.,  contriving  and  intending  as  aforesaid,  after- 
wards, to  wit,  on,  &c.,  with  force  and  arms  at.  Sic,  wickedly  and 
maliciously  did  provoke,  instigate,  excite  and  challenge  the  said  J.  N. 
to  fight  a  duel  with  and  against  him  the  said  J.  S.,  to  the  great  dam- 
age, scandal  and  disgrace  of  the  said  J.  N.,  in  contempt,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Pi'ovoking  a  man  to  send  a  cliallenge.{b) 

[Proceed  as  in  the  last  precedent  to  the  *  and  then  thus):  wicked- 
ly, wilfully  and  maliciously  did  utter,  pronounce,  declare  and  say  to 
and  in  the  presence  and  hearing  of  the  said  J.  N.  these  words  follow- 
ing, that  is  to  say),  "you  are  a  scoundrel  and  a  liar,  and  I  shall  take 
care  to  let  the  world  know  that  you  are  so,"  with  intent  to  instigate, 
excite  and  provoke  the  said  J.  N.  to  challenge  him  the  said  J.  S.  to 
fight  a  duel  with  and  against  him  the  said  J.  N.,  to  the  great  damage, 
&c.,  (as  in  the  last  precedent  but  one),  (//there  be  any  doubt  as  to 
the  ujords,  lay  them  differently  in  different  counts,  and  add  a  gene- 
ral count,  not  setting  out  the  words  but  m,erely  charging  the  de- 
fendant with  having  used  threats  and  opprobrious  language  to  the 
prosecutor,  with  intent,  ^-c.) 


(a)  Arch.  C.  P.  5th  Am.  cd.  714.  (fc)  Arch.  C.  P.  5lh  Am.  cd.  715. 


CHALLEN'GING  TO  FIGHT.  GOl 

Writivg  and  delivering  a  challenge  at  the  instance  of  a  third  person.{c) 

That  A.  B.,late  of,  &c.,  esquire,  on,  &c.,  at,  &c.,  being  of  a  turbulent, 
wicked  and  malicious  disposition,  and  intending  to  procure  great 
bodily  liann  and  mischief  to  be  done  to  C.  D.,  late  of,  &c.,  in  the 
county  aforesaid,  esquire,  and  also  intending,  as  much  as  in  hitn  the 
said  A.*B.  lay,  to  incite  and  provoke  the  said  C.  D.  unlawfully  to  fight  a 
duel  with  and  against  one  E.  F.,  late,  &c.,  on,  &c;,  with  force  and 
arms  at,  &c.,  did  unlawfully,  wickedly  and  maliciously  write  and 
cause  to  be  written,  a  certain  paper  writing,  in  the  words,  letters  and 
figures  following,  to  wit,  (here  set  out  the  paper  ivriting  with  the 
proper  innuendoes),  which  said  paper  writing  (meaning  and  intending 
the  samb  as  such  challenge  as  aforesaid),  he,  the  said  A.  B.,  after- 
wards, to  wit,  on,  &c.,  at,  &c.,  unlawfully,  wickedly  and  maliciously 
did  deliver  and  cause  to  be  delivered  to  the  said  C.  D.,  against,  &c. 
{^Conclude  as  in  book  1,  chap.  3). 

Second  count.  For  deliverntg  a  written  challenge  as  from  and  on  the 
part  and  by  the  desire  of  E.  F.{d) 

That  the  said  A.  B.,  being  such  evil  disposed  person  and  disturber 
of  the  peace  of  our  said  lord  the  king,  as  aforesaid,  and  intending  to 
procure  great  bodily  harm  and  mischief  to  be  done  to  the  said  C.  D., 
and  to  incite  and  provoke  him  the  said  C.  D.  unlawfully  to  fight  a 
diiel  with  and  against  the  said  E.  F.,  afterwards,  to  wit,  on,  &c.,  with 
force  and  arms  at,  (&c.,  did  unlawfully,  wickedly  and  maliciously  de- 
liver and  cause  to  be  delivered  a  certain  written  challenge  as  from  and 
on  the  part  and  by  the  desire  of  the  said  E.  F.,  to  the  said  C,  D.  un- 
lawfully to  fight  a  duel  with  and  against  the  said  E.  F.,  which  said 
last  mentioned  challenge  is  as  follows,  that  is  to  say,  (set  out  the 
challenge),  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Third  count.  For  provoking  and  inciting  the  prosecutor  to  fight.(e) 
.  That  the  said  A.  B.  being  such  evil  disposed  person  and  disturber 
of  the  peace  of  our  said  lord  the  king,  as  aforesaid,  and  intending  to 
procure  great  bodily  harm  and  mischief  to  be  done  to  the  said  C.  D., 
and  to  incite  and  provoke  him  the  said  C.  D.  unlawfully  to  fight  a 
duel  with  and  against  the  said  E.  F.,  afterwards,  to  wit,  on,  &c.,  with 
force  and  arms  at,  &c.,  did  unlawfully,  wickedly  and  maliciously  pro- 
voke and  incite  the  said  C.  D.  (in  the  peace  of  God  and  our  said  lord 
the  king  then  and  there  being),  unlawfully  to  fight  a  duel  with  and 
against  the  said  E.  F.,  against,  &c.     {Conclude  as  in  book  I,  chap.  3). 

For  a  verbal  challenge,{f) 

That  A.  B.,  of,  &c.,  gentleman,  being  an  evil  disposed  person,  and 
intending  to  do  great  bodily  harm  and  mischief  to  one  C.  D.,  and  to 
provoke  and  incite  him  the  said  C.  }).  unlawfully  to  fight  a  duel  with 
him  the  said  A.  B.,  on,  &c.,  at,  &c.,  in  pursuance  of,  and  for  the  com- 
pleting of  his' said  intent  and  design,  did  unlawfully,  wickedly  and 
maliciously,  by  opprobrious  words  and  threatening  language,  provoke, 


(c)  2  Stark,  on  Slander  361.  (d)  Ih.  303.  (e)  76, 

(/)  Davis'  Prec.  p.  87.  Taken  by  Mr.  Davis  from  3  Chit.  C.  L.  850. 
51 


602  OFFENCES  AGAINST  SOCIETY. 

excite  and  challenge  the  said  C,  D.  unlawfully  to  fight  a  duel  with 
and  against  him  the  said  A.  B.,  against,  &c.  [Conclude  as  in  book 
\,  chap.  3). 

Giving  a  challenge  in  the  presence  of  a  justice  of  the  peace.{g) 

That  G.  W.,  of,  &c.,  on,  &c.,.  at,  &c.,  and  within  the  jurisdiction  of 
this  court,  with  force  and  arms,  (fee,  and  in  the  presence  and  hearing 
of  J.  F.,  Esq.,  then  and  there  being  one  of  the  justices  of  this  common- 
wealth, the  peace  in  the  said  comity  to  keep,  assigned,  and  in  the  due 
execiuion  of  his  said  office,  unlawfully  and  contemptuously  did  pro- 
voke and  challenge  one  A.  H.  to  fight  with  liim  the  said  G.  with  dead- 
ly weapons,  to  wit,  with  pistols,  in  contempt  of  the  laws,  to  the  evil 
example  of  all  others,  contrary,  &c.,  and  against,  &c.  {Conclude  as 
in  book  1,  chap.  3). 

For  sejiding  a  challenge  in  Pennsylvania. 

That  A.  B,,  of,  &c.,  on,  &c.,  at,  &c.,  and  within,  &c.,  a  certain  C.  D., 
in  the  peace  of  God,  &c.,  then  and  there  being,  with  force  and  arms, 
&c.,  to  fight  with  swords,  pistols  and  other  dangerous  and  destructive 
weapons,  did  provoke  and  challenge,  with  intention  the  said  C.  D.  to 
kill  and  murder,  contrary,  &c.,  and  against,  &c.  {^Conclude  as  in 
book  1,  chap.  3). 

Accepting  a  challenge. 

That  C.  D.,  of,  &c.,  on,  &c.,  at,  &c.,  and  within,  &c.,  a  provocation 
and  challenge  to  fight  with  swords  and  pistols  and  other  dangerous 
and  destructive  weapons,  unjustly  and  unlawfully  from  a  certain  A. 
B.  did  accept,  receive  and  take,  contrary,  &c.,  (as  above). 

Against  a  second  for  carrying  a  challenge,  under  the  South  Carolina 
statute.{h) 

That  B.  C.  Y.,  late  of,  &c.,  being  resident  in  and  citizen  of  the  State 
of  South  Carolina  aforesaid,  intending  to  procure  great  bodily  harm 
and  mischief  to  be  done  to  one  T.  C.  P.,  of,  &c.,  and  to  incite  and  pro- 
voke him  the  said  T.  C.  P.  unlawfully  to  fight  a  duel  with  and 
against  one  J.  C.  C,  of,  &c.,  on,  &c.,  with  force  and  arms  at,  &c.,  did 
unlawfully  and  wickedly  carry,  convoy  and  deliver  and  cause  to  be 
carried,  conveyed  and  delivered  a  certain  written  challenge  of  and 
from  the  said  J.  C.  C,  to  the  said  T,  C.  P.  to  fight  a  duel  with  and 
against  him  the  said  J.  C.  C,  which  said  written  challenge  is  as  fol- 
lows, that  is  to  say,  {here  set  out  the  letter  luith  the  proper  innuen- 
does), to  the  great  damage  of  the  said  T.  C.  P.,  against,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count.     Same  as  first,  omitting  to  set  out  letter. 

(ff)  Drawn  in  1789  by  Mr.  Bradford,  then  attorney-general. 
(/(}  Held  good  in  State  v.  Cuniiiiigliam,  2  Spear  24b\ 


CHALLENGING  TO    FIGHT.  603 

Third  count. 

That  the  said  B.  C.  Y.,  being  resident,  &c.,  intending  to  to  procure 
great  bodily  harm  and  mischief  to  be  done  to  one  T.  C.  P.,  and  to  pro- 
voke and  incite  the  said  T.  C.  P.  unlawfully  to  fight  a  duel  with  and 
against  one  J.C.C.,on,  &c.,  with  force  and  arms  at,  &c.,  aforesaid,  was 
directly  concerned  unlawfully  in  carrying  to  the  said  T.  C.  P.  a  chal- 
lenge to  fight  a  duel  with  and  against  the  said  J.  C.  C,  which  said 
challenge  was  in  writing  in  the  form  of  a  letter  addressed  to  Mr.  T. 
C.  P.,  as  follows,  that  is  to  say,  {here  set  forth  the  letter  with  the 
proper  inntiendocs),  to  the  great  damage  of  the  said  T.  C.  P.,  to  the 
evil  example  of  all  others,  against,  &c.,  and  against,  &c.  {Conclude 
as  in  book  1,  chap.  3). 

For  being  a  second  in  a  duel.(i) 

That  A.  B.,  of,  &c.,  gentleman,  on,&c.,  with  force  and  arms  at,  &c., 
did  voluntarily  engage  in  a  duel  with  one  C,  D.,  with  dangerous  wea- 
pons, to  wit,  with  pistols,  then  and  there  loaded  with  gunpowder  and 
leaden  bullets,  to  the  great  hazard  of  the  lives  of  the  said  A.  B.  and 
C.  D.,  in  which  duel,  engaged  in  as  aforesaid,  no  homicide  did  ensue 
thereon  ;  and  the  jurors,  &c.,  do  further  present,  that  E.  F.,  of, 
&c.,  gentleman,  being  a  person  regardless  of  the  life  of  man,  and  hold- 
ing in  contempt  the  authority  and  government  of  the  supreme  giver 
and  disposer  of  human  life,  on,  &c.,  in  the  year  aforesaid,  with  force 
and  arms  at  B.  aforesaid,  in  the  county  aforesaid,  did  knowingly  and 
voluntarily  become,  and  then  and  there  knowingly  and  voluntarily 
was  the  second  of  the  said  C.  D.,  and  was  tiien  and  there  knowingly 
and  voluntarily  an  agent  and  abettor  of  him  the  said  C.  D.  in  the  duel 
and  challenge  aforesaid,  against,  &c.,  and  contrary,  &c.  {Conclude 
as  in  book  1,  chap.  3). 

Challenging  and  posting  at  common  laiv.{j) 

That  A.  B.,  late  of,  &c.,  esquire,  being  a  person  of  a  turbulent,  wicked 
and  malicious  disposition,  and  not  liaving  the  fear  of  God  before  his 
eyes,  but  being  moved  and  seduced  by  the  instigation  of  the  devil,  and 
wickedly  and  maliciously  intending  as  much  in  him  lay,  not  only  to 
terrify  and  affright  one  C,  a  good  and  peaceable  subject  of  our  said 
lord  the  king,  but  also  to  kill  and  murder  him,  heretofore,  to  wit,  on, 
&c.,  with  force  and  arms  at,  &c.,  unlawfully  and  wickedly  did  pro- 
voke and  challenge  the  said  C.  to  fight  a  duel  against  him  the  said  A. 
B.  with  sword  and  pistol,  and,  &c.,  that  the  said  C.  having  then  and 
there  refused  to  fight  with  the  said  A.  B.  in  pursuance  of  such  wicked 
and  unlawful  challenge  last  aforesaid,  he  the  said  A.  B,  for  tiie  com- 
})leting  his  aforesaid  evil  and  wicked  purpose  and  design,  and  further 
lo  provoke  and  incite  the  said  C.  to  figlit  a  duel  against  him  the  said 
A.  B.  in  the  maimer  aforesaid,  afterwards,  to  wit,  on  the  same  day 
and  year  aforesaid,  at  C.  aforesaid  in  the  county  aforesaid,  did  wicked- 

(i)  Davis'  Prec.  p.  00.  This  indictment  was  prepared  by  Mr.  Davis,  and  is  drawn  upon 
Ihc  Mass.  Stat,  of  1804,  c.  123,  s.  6. 

{j)  2  Stark,  on  Slander  3li3.     See  for  a  form  for  posting  alone,  p.  550. 


604 


OFFENCES  AGAINST  SOCIETY. 


\y  and  maliciously  place,  stick  up  and  upon  and  caused  to  be  placed, 
stuck  up  and  exposed  to  public  view,  to  wit,  on  the  market  house  in 
C.  aforesaid,  a  certain  paper  writing,  with  the  name  of  him  the  said 
A.  B,  thereunto  subscribed,  containing  certain  scurrilous  and  abusive 
matter  against  the  said  C,  of  the  tenor  folio  wing,, that  is  to  say,  (here 
set  out  the  letter  luith  the  proper  innuendoes),  to  the  great  damage 
and  terror  of  him  tlie  said  C.  F.,  and  against,  &c.  {Conclude  as  in 
book  1,  chap.  3). 


CHAPTER  XII. 

ATTEMPTS  AND  SOLICITATIONS  TO  COMMIT  OFFENCES, (a) 

Attempt  to  commit  an  offence  in  Massachusetts. 

That  A.  B.  of,  &c.,  on,  &c.,  at,  &c.,  did  attempt  to  commit  an  offence 
prohibited  by  law,  to  wit,  did  attempt  with  force  and  arms  to,  [state 

(a)  While  an  attempt  to  commit  a  felony  is  in  itself  a  misdemeanor,  1  Hawk.  P.  C. 
55  ;  Hig^ins'  case,  2  East  R.  21  ;  R.  v.  Kinnersly,  1  Strange  1!)6;  an  attempt  to  commit 
even  a  misdemeanor  is  indictable  ;  Higgins'  case,  2  East  R.  8  ;  R.  v.  Phillips,  6  East  464 ; 
State  V.  Murray,  15  Maine  100;  Com.  v.  Harrington,  3  Pick.  26;  State  v.  Arey,  7  Conn. 
267;  Damarest  v.  Haring,  6  Cow.  76;  State  v.  Keys,  8  Verm.  57;  see  VVh.  C.  L.  5,  n. 
Thus  it  is  an  indictable  ofTcnee  to  advise  A.,  against  whom  a  sheriff  has  a  precept  and 
whom  he  is  about  to  arrest,  to  draw  a  line  on  tiie  ground  and  forbid  Ihe  officer  to  pass  it, 
asserting  at  the  time  that  if  tiic  sheritf  passed  the  ground  and  A.  killed  him,  the  law  was 
on  A.'s  side.  State  v.  Caldwell,  2  Tyler  212;  to  lie  in  wait  near  a  jail,  by  agreement 
with  a  prisoner,  and  to  carry  him  away.  People  v.  Washburn,  10  Johns.  R.  160;  to  send 
threatening  letters,  U.  S.  v.  Ravara,  2  Dull.  2[)1 ;  to  challenge  another  to  tight  with  tists. 
Com.  V.  Whitehead,  2  Boston  Law  R.  148;  to  challenge  another  to  figiit  under  any  cir- 
cumstances, though  not  in  sncii  a  way  as  to  constitute  the  statutory  oflcfice.  State  v.  Far- 
rier,  1  Hawks  4S7;  State  v.  'i'aylor,  3  Rrev.  243;  or  to  even  intimate  to  another  a  desire  to 
fight  with  deadly  wca|)oiis,  Coin.  v.  'I'ibbs,  1  Dana  524. 

In  an  indictment  for  attempting  to  corninit  an  otfence  it  is  not  necessary  to  maintain 
an  exactness  as  great  as  that  which  is  essential  in  an  indictment  for  the  offence  itself,  R. 
e.  Higgins,  2  East  5;  see  Wh.  C.  L.  80;  as  in  an  indictment  for  an  assault  with  intent 
to  murder,  it  is  not  necessary  to  set  forth  the  instrument  used.  State  v.  Dent,  3  G.  tfc  J.  8. 
Nor  in  an  assault  with  intent  to  pick  from  the  pocket,  is  it  necessary  to  set  out  the  money 
attempted  to  be  stolen  ;  Com.  v.  IJogers,  5  S.  &  R,  463.  In  an  indictment  under  the  New 
York  statute,  as  will  be  presently  shown,  for  soliciting  the  commission  of  an  offence,  the 
particular  manner  in  which  the  solicitation  was  made  need  not  be  set  out;  People  v.  Bush, 
4  rii'l  1.33. 

Every  solicitation  of  another  to  commit  an  indictable  offence,  whereby  felony  or  misde- 
meanor is  itself  an  act  amounting  to  a  misdemeanor  at  common  law  ;  Dickinson's  Q.  S. 
c.  6,  H.  1  ;  Wh.  C.  L.  562.  Tims,  to  solicit  a  servant  to  steal  the  goods  of  his  master  is  ai 
misdemeanor,  although  no  fc^loriious  act  be  done  in  pursuance  of  the  incitement,  or  any 
further  step  beyond  the  soliciting  be  taken  towards  llic  commission  of  the  lelony ;  R.  v. 
Ilifuiiis,  2  I'l.isl  R.  5.  At,rain,  to  solicit  a  uk  inber  of  tlie  privy  council  to  accept  a  bribe 
fix-  the  disposal  of  an   ofhce,  R.  v.  Vaughan,  4  Huir.  R.  24U4  ;  to  solicit  a  woman  to  com- 


ATTEMPTS  AND  SOLICITATION'S  TO  COMMIT  OFFENCES.  005 

(he  offence),  that  being  an  oft'ence  prohibited  by  law,  and  in  such 
attempt  did  then  and  there  do  a  certain  overt  act  towards  the  com- 
mission of  said  offence,  to  wit,  did  then  and  there  with  force  and 
arms,  {state  the  act  done,  <§-c.) ;  but  said  A.  B.  then  and  tliere  did 
fail  in  the  perpetration  of  said  offence,  and  was  intercepted  and  pre- 
vented in  the  execution  of  the  same,  against,  &c.,  and  contrary,  &c. 
{Conclude  as  m  book  1,  chap.  3). 

Alternating  to  commit  arson,  <^c.,  in  JVew  York,  under  2  Rev.  Slat.  698, 
s.  3.     Fii'st  count,  attemipling  to  set  fire,  ^c.{b) 

That,  &c.,  on,  &c.,  at,  &c.,  did  attempt  unlawfully,  feloniously  and 
wilfully  to  set  fire  to  a  certain  barn  of  J.  S.,  situate,  &c.,  with  intent 
to  injure  the  said  J.  S.,  &c.,  against,  &c.  {Conclude  as  in  book  1, 
chap.  3). 

Second  count.     Soliciting  another  to  commit  arson,  6fC. 

That,  &c.,  on,  &,c.,  at,  &c.,  unlawfully,  falsely  and  wickedly 
did  solicit  and  incite  one  K.  unlawfully,  feloniously  and  wilfully,  in 
the  night  time,  to  set  fire  to  a  certain  barn  of  said  J.  S.,  situate,  &c. ; 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Attempting  to  set  fire  to  a  house,  at  common  law. 

That  M.  I.,  late  of,  &c.,  spinster,  on,  &.C.,  at,  &,c.,  and  within  the 
jurisdiction  of  this  court,  with  force  and  arms  the  dwelling  house  of 
S.  C.  there  situate,  unlawfully  and  wickedly  did* attempt  and  endea- 
vour to  set  fire  to,  burn  and  destroy  with  an  intent  feloniously,  volun- 
tarily and  maliciously  to  burn  and  consume  the  same,  to  the  evil 
example,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Conveying  instruments  into  a  prison  with  intent  to  facilitate  the  escape 
of  a  prisoner.{c) 

That  heretofore,  to  wit,  on,  &c.,  at,  &c.,  A.  B.,  Esq.,  then  being  one 
of  the  justices  of  the  peace  in  and  for  the  said  county  of  duly 

and  legally  authorized  and  qualified  to  discharge  and  perform  the 

mit  adultery,  State  v.  A\eTy,  7  Conn.  267;  to  promise  mofley  to  a  member  of  a  corpora- 
tion if  he  will  vote  for  a  particular  individual  as  mayor,  R.  v.  Plyinpton,  2  Ld.  Rayin. 
1377;  or  to  oflkr  a  bribe  to  a  juryman,  Young's  case,  cited  2  East  R.  14-16,  are  them- 
selves misdemeanors;  and  the  same  principle  applies  to  all  ca.ses  where  an  inefTcctual 
attempt  is  made  to  induce  another  to  commit  an  offence.  Oji  a  prosecution  for  misde- 
meanor in  iticiling  another  to  commit  a  felony,  it  is  not  necessary  for  the  prosecutor  to 
show  negatively  that  the  felony  was  not  completed ;  but  he  may  leave  it  to  the  defendant 
to  show,  if  he  thinks  fit,  that  the  misdemeanor  was  uiged  in  the  greater  offence,  or  in  the 
absence  of  such  proof  he  may  be  convicted  of  such  solicitation  ;  R.  v.  Higgins,  2  East  R. 
19,  20,  per  Grose  J. 

(6)  People  V.  Bush,  4  Hill  133.  Tlie  first  of  these  counts  was  held  good  under  2  R.  S. 
583,  2d  ed.,  s.  3 ;  and  the  second  as  a  misdemeanor  at  common  law.  Tlie  general  prin- 
ciple was  laid  down  that  in  cases  of  indictments  for  attempts,  it  wa.s  not  necessary  to 
point  but  the  sjjccific  means  by  which  the  attempt  was  to  be  consummated. 

(c)  Davis'  Free.  117.  "This  precedent,"  says  .Mr.  Davis,  "is  drawn  upon  the  second 
section  of  the  statute  of  Massachusetts  of  1784,  c.  41.  It  also  concludes  at  common  law. 
See  a  similar  precedent  in  St;irk.  612,  drawn  upon  the  statute  of  16  Geo.  II.  c.  31,  s.  1; 
also  another  in  Crp.  C.  A.  328." 

51* 


()00  OFFENCES  AGAIXST  SOCIETY.     . 

duties  of  that  office,  did  make  out  his  warrant  of  commitment  in  due 
form  of  law,  bearing  dale  the  day  and  year  aforesaid,  dn-ected  to  the 
keeper  of  the  common weaUh's  gaol   in  aforesaid,  his   under- 

keeper  or  deputy,  by  which  said  warrant  of  commitment  the  said 
justice  did  require  the  keeper  of  said  gaol,  his  under-keeper  or  deputy, 
to  receive  into  their  custody  the  body  of  one  C.  D.  who  was  there- 
with sent  to  them  the  said  keeper,  his  under-keeper  or  deputy  (the 
said  C.  D.  having  been  brought  before  him  the  said  justice  and 
charged  upon  tlie  oath  of  E.  F.  with  having  feloniously  taken,  stolen 
and  carried  away  a  certain  gelding  of  the  value  of  dollars,  the 

property  of  him  the  said  E.  F.),  and  him  the  said  C.  D.  safely  to  keep 
until  he  should  be  discharged  by  due  course  of  law ;  which  said 
warrant  of  commitment  is  as  follows,  {here  set  forth  the  warrant  of 
coimnitment) ;  by  virtue  of  vvliich  said  warrant  the  said  C.  D.  alter- 
wards,  to  wit,  on  the  same  day  and  year  aforesaid,  at  B.  aforesaid, 
was  conveyed,  committed  and  delivered  to  the  commonwealth's  said 
gaol  situated  in  said  B.  and  to  the  keeper  thereof,  for  the  cause  afore- 
said, to  wit,  for  the  felony  and  larceny  aforesaid;  and  the  said  CD. 
was  then  and  there  lawfully  detained  and  kepi  a  prisoner  in  the  afore- 
said gaol,  under  the  custody  of  I.  J.,  Esq.,  then  the  keeper  of  said 
gaol,  for  the  felony  aforesaid.  And  the  jurors  aforesaid  upon  their 
oath  aforesaid,  do  further  present,  that  K.  L.  of  in  the  county 

aforesaid,  labourer,  on  the  day  of  at  B.  aforesaid,  in  the 

county  aforesaid,  did  unlawfully  convey  and  did  cause  and  procure 
to  be  unlawfully  conveyed  into  the  said  gaol  and  prison,  two 
steel  files,  being  instfuments  proper  to  facilitate  the  escape  of  prison- 
ers out  of  the  gaol  and  prison  aforesaid,  and  the  same  files  did  then 
and  there  deliver  and  cause  and  procure  to  be  delivered  to  the  said 

C.  D.  (he  being  then  and  there  a  prisoner  in  said  gaol  and  prison 
and  then  and  there  lawfully  detained  therein  for  the  felony  and 
larceny  aforesaid),  without  the  knowledge  and  privity  of  said  keeper 
of  said  gaol  and  prison  or  of  any  under-keeper  of  the  same,  which 
said  files  being  such  instruments  as  aforesaid,  were  then  and  there  so 
conveyed  into  the  said  gaol  and  prison  and  delivered  to  the  said  C. 

D.  as  aforesaid,  by  him  the  said  K.  L.  with  an  intent  that  he  the  said 
C.  D.  might  thereby  and  therewith  break  the  said  gaol  and  prison 
and  unlawfully  work  himself  out  of  the  same,  and  with  intent  to  aid 
and  assist  tlie  said  C.  D.  to  escape  and  attempt  to  escape  from  and 
out  of  the  said  gaol  and  prison,  against,  &:c.,  and  contrary,  &c.  {Con- 
clude as  ill  book  1,  chap.  3). 

Lying  in  viait  near  a  gaol  in  order  to  secure  a  prisoner''s  escape,  at  com- 
mon law.{d) 

That  A.  B.,  Esq.,  then  being  one  of  the  j.ustices  of  the  peace  in 
for  the  county  of  duly  and  legally  commissioned,  authorized 

and  qualified  to  discharge  the  duties  of  that  office,  did  make  out  his 
warrant  of  commitment  in  due  form  of  law,  luider  his  hand  and  seal, 

(rf)  This  was  meant  as  a  statutory  misdemeanor,  but  as  the  off<;nre  was  not  stated  as 
such,  tlic  indictiucDl  was  sustained  as  at  coininou  law  ;  People  v.  Toiapkiiis,  li  Jolms.  7.L 


ATTRMPTS  AND  SOLICITATIONS  TO  COMMIT  OFFENCES.  607 

dated,   &c.,   directed   to   the   keeper   of  (his   under-keeper   or 

deputy),  by  wliich  said  warrant,  [setting  out  the  ivarr(int),  us  by 
the  same  warrant  more  fully  appears,  by  virtue  of  which  said  war- 
rant of  commitment,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  A.  B.  then 
being  keeper  of  the  said  gaol,  &c.,  of  the  said  county,  &c.,  did  receive 
the  said  W.  M.  as  a  prisoner  in  the  gaol  aforesaid,  &c.(e)  And  the 
inquest  aforesaid,  &c.,  do  further  present,  that  J.  T.,  &c.,  on,  &c.,  at, 
&c.,  being  well  acquainted  with  the  premises  aforesaid,  and  while  the 
said  A.  T.  was  then  in  the  gaol  atbresaid,  under  the  custody  afore- 
said, did  unlawfully  and  knowingly  combine  and  conspire  with  the 
said  A.  T.,  and  near  the  said  gaol  did  lie  in  wait,  to  the  intent  and 
purpose  that  the  said  A.  T.  might  thereby  be  enabled  to  esca))e ;  and 
that  pursuant  to  the  contrivance  and  conspiracy  of  the  defendant 
with  the  said  A.  T.,  and  by  his  means  and  procurement  she  did 
escape  and  go  at  large  from  the  said  gaol,  and  so  the  said  J.  T.  did 
convey  the  said  A.  T.  awEiy  and  assist  her  in  escaping  from  the  said 
gaol,  contrary,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Keeping  keys  with  intention  to  commit  hurglary.{f) 

That  J.  C,  late  of,  &c.,  yeoman,  on,  &c.,  at,  &c.,  and  within  the 
jurisdiction  of  this  court,  with  force  and  arms,  &c.,  twenty  false  keys 
made  of  iron,  in  his  custody  and  possession  unlawfully  had  and  kept, 
with  a  wicked  intent  on  the  dwelling  house  of  the  citizens  of  this 
state  \\\  the  night  time  feloniously  and  burglariously  to  break,  and 
with  the  same  false  keys  to  open  and  enter  and  the  goods  and  chat- 
tels of  the  same  citizens  in  the  same  dwellnig  house  being,  feloniously 
and  burglariously  to  steal,  take  and  carry  away,  against,  &c.  [Con- 
clude as  in  book  1,  chap.  3). 

Administering  poison  ivith  intent  to  murder.{g) 

That  A.  B.,  &c.,  on,  &c.,  in  tlie  county  aforesaid,  feloniously  and  un- 
lawfully did  administer  to  one  J.  N.  (administer  to  or  cause  to-be  taken 
by  any  person),  a  large  quantity  of  a  certain  deadly  poison  called 
white  arsenic,  to  wit,  two  drachms  of  tlie  said  white  arsenic  (any 
poison  or  destructive  thing),  with  iiitent  then  and  there  and  thereby 
feloniously,  wilfully  and  of  his  malice  aforethought,  the  said  J.  N.  to 
kill  and  nun^der,  against,  &c.,  and  against,  &c.  [Conclude  as  in 
book  1,  chap.  3). 

[v'idd  a  count  stating  that  the  defendant) :  "  did  cause  to  be  taken 

(0  Sec  2  Chit.  C.  L.  175. 

(/)  Drawn  by  Mr.  Brad  font  in  1789. 

(g)  Arcli.C.  P.  5lli  Am.  ed.  This  form  is  bnsed  on  7  Wm.  4  and  1  Vict.  c.  ^~>,  s.  2,  which 
enacts  that  "  wliosoevcr  sliall  administer  or  cause  to  administer  to  or  cause  to  be  taiien  by 
any  person,  any  poison  or  oilier  destructive  thincf,"  "shall  be  guilty  of  felony,"  &,c.  The 
form  in  the  text,  however,  would  undoubtedly  be  licld  good  as  at  common  law  in  those 
states  where  no  statute  exists. 

The  indictment  miif'  allege  the  thing  administered  to  be  poisonous  or  destructive;  and 
therefore  an  indictiiu-nt  for  adminislcring  sponge  mixed  with  milk,  not  allcgin-^'-  tl;e  sponge 
to  bi-  destructive,  vva;^  held  b.id  ;  R.  ».  Powlcs,  4  C.  &  P.  .571.  If  there  b'.-  :iny  dmibt 
whct^ier  the  poison  was  iiit,<  iided  for  .1.  N.,  atld  a  count  stating  the  intent  to  be  "to  com- 
mil  murdej"  generally ;  R?ee  Rex  ».  Ryan,  2  M.  6i,  R.  213. 


608  OFFENCES  AGAINST  SOCIETY. 

by  J.  N.  a  large  quantity,"  &c. ;  {and  if  the  description  of  poison 
be  doubtful,  add  counts  describing  it  in  different  ivays  ;  add  one 
count  stating  it  to  be):  "a  certain  destructive  thing  to  the  jurors 
aforesaid  unknown." 


CHAPTER  XIII. 

REVOLT,    PIRACY    AND    VIOLATION    OF    THE    LAWS     CONCERNING     THE 

SLAVE  TRADE. 

Making  a  revolt. 

That  H.  G.,  et  al.,  all  late,  &c.,  on,  &c.,  in  and  on  board  of 
a  certain  American  ship  or  vessel  called  the  Hibernia,  then  lying 
within  the  jurisdiction  of  a  foreign  state  or  sovereign,  to  wit,  at, 
&c.,  the  same  then  and  there  being  an  American  ship  or  vessel, 
belonging  to  certain  persons,  citizens  of.  the  United  States,  whose 
names  are  to  the  jurors  aforesaid  as  yet  unknown,  of  which  ship 
or  vessel  one  A.  B.  was  then  and  there  master,  with  force  and 
arms  did  make  a  revolt  in  said  ship  or  vessel  (by  unlawfully,  wil- 
fully and  with  force  usurping  the  command  of  such  ship  and  vessel 
from  the  said  the  master  thereof,  or,  by  unlawfully,  wilfully 

and  with  force  depriving  the  said  the  master  thereof,  of  his 

authority  and  command  on  board  of  the  said  vessel,  &c.),(a)  they 
the  said  H.  G.,  et  al.,  then  and  there  being  the  crew  of  the  said  ship 
or  vessel,  against,  &c.,  and  contrary,  «&c.  {Conclude  as  in  book  1, 
chap.  3). 

{Add  count  for  endeavouring  to  commit  revolt,  as  in  next  form). {b) 


{a)  One  of  the  segments  of  the  passaj^c  in  brackets  or  an  averment  of  a  similar  character 
under  the  act,  is  made  necessary  by  (lie  decision  of  Judge  Kane,  in  the  case  of  U.  S.  v. 
Almeida,  Disl.  Ct.  U.  S.,  Phil.,  Feb.  1847.  "Tiie  indictment,"  he  said,  "on  wiiich  these 
prisoners  were  convicted  a  few  days  ago,  charges  that  on  the  first  day  of  November  last, 
Tipon  the  high  seas,  <Stc.,  they  being  'seamen  of  an  American  vessel,  to  wit,  the  barque 
Pons,  with  tierce  and  arms,  did  then  and  there  feloniously  tnake  a  revolt  on  board  tlie  said 
ship,  contrary,'  &.c. 

"A  motion  has  been  made  in  arrest  of  judgment,  on  tlie  ground  that  the  offence  is  not 
set  forth  in  the  indictment  with  ade(juato  cerf:iinly  ;  and  it  has  been  contended,  that  under 
the  acts  of  congress  now  in  force,  it  was  incumbent  on  the  prosecution  to  act  out  more 
specifically  the  acts,  which  make  up  the  offence  charged. 

"The  (pjc'stion  presented  by  the  record  is  more  interesting  than  difficult;  but  as  it  ap- 
pears to  be  of  the  liryt  impression,  it  i)ro|)crIy  invites  an  ex[)osition  of  the  views  of  the  court 
ill  deciding  it. 

"The  law  secures  to  every  man  who  is  broiiglit  to  trial  on  a  charge  of  crime,  that  the 


REVOLT,  &C.  609 

acts  which  constitute  his  alleofcd  ^uilt,  shall  be  set  forth  with  reasonable  certainty  in  tlie 
indictment  vvliich  Jie  is  called  upon  to  plead  to.  This  is  his  personal  right— indispepsable, 
to  enable  him  to  traverse  the  facts,  if  he  believes  them  to  be  untruly  charged— to  deny 
their  asserted  legal  bearing,  if  in  his  judgment  they  do  not  establish  the  crime  imputed  to 
him — or  to  admit  at  once  the  facts  and  the  conclusion  from  them,  if  he  be  conscious  of 
guilt.  It  is  important  to  his  protection  also,  in  case  he  should  be  a  second  time  charged 
for  the  same  offence,  that  there  should  be  no  uncertainty  as  to  that  for  wiiich  he  was  tried 
before.  And  besides  all  this,  which  may  be  supposed  to  regard  the  accused  alone  ;  it  is 
necessary  for  the  proper  action  and  justification  of  the  court,  liiat  it  should  clearly  appear 
from  facts  patent  on  the  record,  that  a  specific,  legally  defined  crime  has  been  committed, 
for  which  sentence  is  to  be  awarded  according  to  the  laws  that  apply  to  it, 

"  There  are  exceptions,  or  rather  limits,  to  tiie  application  of  this  principle;  but  they  all 
refer  themselves  to  the  peculiar  character  of  the  offenoe  charged.  Thus,  an  indictment 
against  a  '  common  barrator,'  or  for  '  keeping  a  common  gaming  house,'  or  'a  house  of  ill- 
fame,'  is  good  without  a  specification  of  acts  ;  for  the  essence  of  the  offence  in  these  cases 
is  habitual  character.  So  also,  where  the  charge  is  not  the  absolute  perpetration  of  an 
offence,  but  its  primary  characteristic  lies  in  the  intent,  instigation  or  motion  of  the  party 
towards  its  perpetration  ;  the  acts  of  the  accused,  important  only  as  developing  the  mala 
mens,  and  not  constituting  of  themselves  the  crime,  need  not  be  spread  upon  the  record. 
Such  are  certain  cases  of  conspiracy,  and  those  of  attempt  or  solicitation,  to  com- 
mit a  known  crime  ;  where  the  mental  purpose  may  not  have  matured  into  effective  action, 
or  has  had  reference  to  criminal  action  by  a  third  party — a  class  of  exceptions  this  last, 
which  vindicates  much  of  the  judicial  action  under  this  statute. 

"  But  these  are  only  exceptions :  the  principle  is  as  broad  as  the  common  law.  It  is  not 
enough,  and  never  has  been,  to  charge  against  the  party  a  mere  legal  conclusion,  as  justly 
inferential  from  facts  that  are  not  themselves  disclosed  on  the  record.  You  may  not  charge 
treason,  murder,  or  piracy,  in  round  general  phrases.  You  must  set  out  the  act  which  con- 
stitutes it  in  the  particular  case. 

"  Following  out  the  principle,  it  has  always  been  held  that  where  various  acts  have  been 
enumerated  in  a  statute,  as  included  in  the  same  category  of  crime,  and  to  be  punished 
alike,  it  is  not  enough  to  charge  the  violation  of  such  a  statute  in  disjunctive  or  alterna- 
tive terms.  That  is  to  say,  you  may  not  charge  its  violation  to  have  been  in  tliis  or  that 
or  another  particular,  leaving  the  defendant  uncertain  whicii  or  how  many  of  the  eimme- 
rated  paiticulars  he  is  to  answer  to.  He  is  entitled  to  precise  notice  of  the  accusation 
against  him. 

"  All  these  are  long  recognized  rules  of  the  criminal  law,  framed  for  the  protection  of 
innocence,  and  not  unfrequehtly  essential  to  its  safi3ty.  The  court  has  no  right  to  disre- 
gard them,  if  it  would;  on  the  contrary,  it  is  called  upon  by  the  highest  duty  that  man  can 
owe  his  fellow,  to  see  to  it  that  they  lose  none  of  that  cfliciency  for  good  which  is  due  to 
the  uniformity  and  certainty  of  their  application.  The  defendants  have  asserted  of  record, 
that  in  their  case  these  rules  of  pleading  have  not  been  conformed  to,  that  they  have  not 
had  such  notice  of  the  offence  charged  against  them  as  the  law  requires,  and  that  there  is 
not  now  within  the  judicial  knowledge  of  the  court  that  precise  and  specific  assurance  of 
their  guilt,  which  can  warrant  us  in  i)ronouncing  sentence  upon  this  verdict.  If  it  be  so, 
they  are  not  too  late  in  bringing  the  fact  to  our  notice. 

"  The  indictment  it  is  understood,  is  in  accordance  with  the  precedents  under  the  Crimes' 
Act  of  171)0.  By  the  8th  section  of  that  act  (1  Stor.  P.  S.  84),  it  was  enacted,  that  if  any 
.seaman  shall  lay  violent  hands  on  his  commander,  thereby  to  hinder  him  from  defending 
his  siiip,  or  the  goods  committed  to  his  trust,  '  or  shall  make  a  revolt  in  tiie  ship,'  he  shall 
be  adjudged  to  be  a  pirate  and  a  felon  ;  and  by  tiie  12th  section,  it  was  enacted  that  if  ariy 
seaman  shall  confine  the  master  of  any  ship  or  vessel,  or  '  endeavour  to  make  a  revolt'  in 
such  ship,  he  shall  on  conviction  suffer  imprisonment  and  fine. 

"Almost  all  the  indictments  that  have  been  framed  under  this  aet  for  offences  similar 
to  the  present,  have  ch:irgedthe  offence  in  the  words  of  the  12th  section,  for  'endeavouring 
to  make  a  revolt;'  U.  S.  v.  Bladen,  1  P.  C.  C.  R.  2i:3  ;  U.  S.v.  Smith,  3  \V.  C.  C.  R.  78  ; 
U.  S.  V.  Smith  and  Combs,  3  \V.  C.  C.  R.  526  ;  U.S.v  Kelly,  4  W.  C.  C.  R.  528  ;  U.  S.  v. 
Smith,  1  Mas.  147;  U.  S.  v.  Hamilton,  1  Mas.  443;  U.  S.  v.  Kcefe,  3  Mas.  475;  U.  S.  v. 
Hemmer,  4  Mas.  105;  U.  S.  v.  Haines,  5  Mas.  272;  U.  S.  Gardner,  5  Mas.  402;  U.  S.v. 
Barker,  5  Mas.  404;  U.  S.  v.  Savage,  5  Mas.  4G0;  U.  S.  ».  Thompson,  1  Sumn.  168;  U. 
S.  V.  Morrison,  1  Sumn.  448;  U.  S.  «.  Ashton,  2  Sumn.  13  ;  U.  S.  ».  Cassedy,  2  Sumn.  582; 
U.  S.  V.  Rogers,.  3  Sumn.  342.  Now,  as  we  have  already  remarked,  a  charge  for  such  an 
offence  as  was  the  subject  of  all  these  cases,  resting  merely  in  the  endeavour,  not  going  to 
the  perfected  act,  was,  according  to  all  tiie  authorities,  well  laid  in  the  succinct  descriptive 
words  of  the  section;  and  in  the  only  cases  under  the  8lh  section,  in  which  the  principal 
oflerice  of  making  a  revolt  was  ehnrired,  (U.  S.  v.  Sharp,  1  P.  C.  C.  R.  118;  Same  v.  Same, 
1  P.  C.  C.  R.  131 ;  and  U.  S.  v.  Haskell,  4  VV.  C.  C.  R.  402),  the  indictment  WaS.  quashed 


610 


OFFENCES  AGAINST  SOCIETV. 


or  tfie  judgment  arrested  on  other  grounds,  or  else  tlie  acquittal  of  the  prisoner  mnde  it 
unnecessary  to  discuss  the  question  wliich  is  now  before  us..  No  sentence  has  ever  been 
pronounced  on  such  a  conviction. 

"  Indeed,  the  courts  before  whom  the  cases  were  tried  on  indictments  like  this,  though 
the  particular  question  was  not  raised  upon  the  pleadings,  felt  themselves  embarrassed  by 
the  undefined  phraseology  of  tlie  act  of  congress,  and  Judge  Washington  n)ore  than  once 
recommended  to  the  jury  not  to  find  tiie  defendant  guilty  of  either  making  or  endeavouring 
to  make  a  revolt,  however  strong  the  evidence  might  be  ;  (see  U.  S.  v.  Sharp,  and  U.  S.  v. 
Bladen,  ut  supra). 

"The  question  of  the  meaning  of  these  terms  was  at  last  submitted  to  tiie  Supreme  Court 
of  the  United  States,  in  a  case  that  went  up  on  a  certificate  of  division  from  this  circuit  (U.  S.  v. 
Kelly,  ut.  supra,  and  VVIieat.  417),  and  in  the  spring  of  1826  the  import  of  the  act  of 
congress  of  17'JO  was  judicially  determined. 

"  In  183.5,  however,  a  new  act  of  congress  (4  Stor.  P.  S.  2416)  was  passed,  which,  ob- 
viously referring  to  the  language  of  the  Supreme  Court  in  Kelly's  case,  yet  not  adopting 
it,  proceeded  to  declare  what  violations  of  law  siiould  thereafter  be  deemed  to  constitute 
the  crime  of  revolt.     The  language  of  the  first  section  oftiiis  act- is  as  follows: 

"  '  Ifany  one  or  more  of  tlie  crew  of  any  American  ship  or  vessel  on  the  high  seas,  or 
on  any  other  waters  within  the  admiralty  or  maritime  jurisdiction  of  the  United  States 
shall  unlawfully,  wilfully  and  with  force,  or  by  fraud,  threats  or  other  intimidations  usurp 
the  command  of  such  ship  or  vessel  from  the  master,  or  other  lawful  commanding  officer 
thereof,  or  deprive  him  of  his  authority  and  command  on  board  thereof  or  resist  or  prevent 
him  in  tlie  free  and  lawful  exercise  thereof,  or  transfer  such  authority  and  command  to  any 
other  person  not  lawfully  entitled  thereto,  every  such  person  so  otfcnding,  his  aiders  or 
abettors,  shall  be  deemed  guilty  of  a  revolt  or  mutiny  and  felony;  and  shall  on  conviction 
thereof  be  punished  by  fine  not  exceeding  two  thousand  dollars,  and  by  imprisonment  and 
confinement  to  hard  labour  not  exceeding  ten  years,  according  to  the  nature  and  aggrava- 
tion of  the  offence.' 

"  The  unlawful  acts,  which  now  tall  within  the  definition  "of  a  maritime  revolt,  are  dis- 
tributed by  the  language  of  this  section  into  four  categories  or  classes: — 1.  Simple  resist- 
ance to  the  exercise  of  the  captain's  authority.  2.  The  deposition  of  the  captain  from  his 
command.  3.  The  transfer  of  the  captain's  power  to  a  third  person.  4.  Tlie  usurpation 
of  the  captain's  power  by  the  party  accused. 

"  It  is  impossible  to  analyze  the  section  as  I  have  done,  without  remarking  that  the 
offences  which  it  includes,  however  similar  in  character,  differ  widely  in  degree.  The 
single  act  of  unpremeditated  resistnnce  to  the  captain  cannot  be  identified  with  his  formal 
degradation  from  the  command,  still  less  with  the  usurpation  of  his  station,  without  over- 
looking the  gradations  of  crime,  and  confounding  the  accidental  turbulence  of  a  heated 
Bailor  with  the  deliberate  and  daring  and  triumphant  conspiracy  of  mutineers. 

"  This  indictment  however  makes  no' reference  to  these  statutory  distinctions.  It  pursues 
the  precedents  in  use  before  the  act,  and  charges  all  the  prisoners,  simply  and  alike,  with 
'making  a  revolt:'  and  in  this  we  are  told,  it  conforms  to  other  indictments  which  have 
been  framed  by  dift'crent  attorneys  for  the  United  States  since  the  act  was  passed.  But  is 
there  in  this  such  a  clear  and  specific  description  of  the  offence  of  each  of  tiiese  men  as  the 
rules  of  criminal  pleading  prescribe,  and  the  language  of  the  act  has  made  easily  practi- 
cable ?  Is  it  more  than  a  charge  in  the  alternative  or  disjunclive,  when  the  terms  in  which 
the  charge  is  made  must  be  resolved  into  alternative  or  disjunctive  jiropositions  in  order  to 
be  understood?  Does  this  court  see,  on  inspecting  the  record  of  this  conviction,  and  will 
other  courts,  who  may  hereafter  refer  to  it  for  a  precedent,  see  here  that  clear  reference  to 
the  grades  of  guilt  recognized  by  the  act  of  congress,  which  should  explain  the  difference 
properly  to  be  made  in  the  sentences  of  the  prisoners? 

"The  circumstances  of  the  ease,  as  they  are  known  to  the  judge  who  presided  at  the 
trial,  illustrate  the  force  of  this  last  question.  Among  the  prisoners  is  a  principal  officer  of 
the  shi|),  who,  according  to  the  evidence  upon  which  tlie  jury  convicted  him,  was  the 
moving  spirit  and  principal  actor  of  the  revolt,  who  struck  the  captain  to  the  deck  with  a 
deadly  weapon,  imprisoned  him,  bound,  in  a  darkened  state-room,  with  a  sentry  at  the  door, 
while  he  hims(-lf  usurped  the  command  of  the  ship,  continuing  to  exercise  it  till  he  was 
within  two  hours'  travel  of  the  city.  Another  prisoner  is  a  simple  seaman,  whose  offence 
consisted  in  omitting  to  interfere  for  the  ca|)tain's  rescue,  rather  than  in  any  more  direct 
agency  against  him.  Flad  the  several  ca1cgori(s  olerimo  which  the  8lli  sielion  indicates, 
formed  the  subjects  of  charge  in  as  many  counts  of  the  indictment,  is  it  not  altogether  pos- 
sible that,  upon  the  same  evidence,  one  of  these  men  would  now  stand  convicted  on  several 
charges,  the  other  of  but  one,  and  that  the  lightest  on  the  list  ? 

"But  this  is  illustration  merely  :  the  argument  is  independent  of  it.  The  party  accused 
is  entitled  tr)  the  most  clear  specification  of  his  offence  that  itseharaeter  and  circumstances 
reasonably  admit  of;  and  it  cannot  be  said  that  he  has  had  this,  when  a  moie  direct  des- 


REVOLT,  &C.  Gil 

Endeavouring  to  make  a  revoIt.{bh) 

That  A.  B.,  late  of,  &c.,  C.  D.,  late  of,  &c.,  and  E.  F.,  late  of,  &c., 
{specify  every  one  separately ,  as  above),  heretofore,  to  wit,  on,  &c., 
with  force  and  arms  on  the  high  seas,  out  of  the  jurisdiction  of  any- 
particular  state  of  the  said  United  States,  on  waters  within  the  admi- 
ralty and  maritime  jurisdiction  of  the  said  "United  States,  and  within 
the  jurisdiction  of  this  court,  in  and  on  board  of  a  certain  American 
vessel,  being  a  called  the  whereof  one  G.  H.  was  then 

and  there  the  master  and  commander,  did  then  and  there  endeavour  to 
make  a  re  volt,  they  the  said  A.B.,C.  D.  and  E.  F.,then  and  there  being, 
[state  number),  of  the  crew  of  the  said  American  called  the' 

against,  &c.,  and  against,  &c.  [Conclude  as  in  book  \,  chap.  3). 

Second  count.  Same,  setting  out  the  "  endeavour""  to  consist  in  a  con- 
spiracy, ^-c. 

That  tlie  said  A.  B.,  C.  D.  and  E.  F.,  heretofore,  to  wit,  on,  &c.,  with 
force  and  arms  upon  the  high  seas,  out  of  the  jurisdiction  of  any  par- 
ticular state  of  the  said  United  States,  on  waters  within  the  admiralty 
and  maritime  jurisdiction  of  the  said  United  States,  and  within  the 
jurisdiction  of  this  court,  in  and  on  board  of  a  certain  American  vessel, 
being  a  called  the  whereof  one  G.  H.  was  then  and  there 

the  master  and  commander,  did  then  and  there  endeavour  to  make  a 
revolt,  in  this,  that  they  the  said  A.  B.,  C.  D.  and  E.  F.,  did  then  and 
there  combine,  conspire  and  confederate  with  K.  L.  and  M,  N.,  on 
board  of  said  called  the  to  make  a  revolt  in  and  on  board  of 

said  called  the  they  the  said  then  and  there  being, 

{state  number),  of  the  crew  of  the  said  called  the  ,  against, 

&.C.,  and  against,  dec.     [Conclude  as  in  book  1,  chap.  3). 

Third  count. 

[Like  second  count,  striking  out):  "did  then  and  there  endeavotH- 
to  make  a  revolt,  in  this,  that  they  the  said  ." 

Fourth  count. 

[Like  third  count,  substituting)  :  "  did  then  and  there  combine, 
conspire  and  confederate  with  some  other  person  or  persons,  on 
board   of  said  vessel,  being  a  called  the  to   the   jurors 

aforesaid  unknown,  to  make  a  revolt,  &c.,"  for  "  did  then  and  there 
combine,  conspire  and  confederate  with  on  board  of  said 

called  the  to  make  a  revolt,  &c." 

cription  is  furnislied  in  the  very  words  of  the  iict  under  which  he  is  indicted.  The  judg- 
ment, therefore,  must  be  arrested. 

"  In  tlius  dceidinjr  upon  tlie  insufficiency  of  the  indictment,  the  court  is  not  insensible 
to  the  consideration  that  pcriiaps  very  little  of  essential  wrongr  mifrht  have  been  sustained 
by  either  ot'tlie  prisoners  if  we  could  lawfully  h;|ve  proceeded  to  the  sentence.  The  facts 
cannot  be  more  faithfully  examined,  nor  tiie  merits  of  the  case  more  ably  developed  in 
argument,  nor  as  it  seems  to  us,  niore  candidly  and  intcllig-ently  apprehended  by  the  jury, 
than  they  v\ere  in  the  protracted  and  laborious  trial  which  recently  closed.  But  we  have 
no  right  to  consider  of  [)olicy,  at  best  probable,  in  reference  to  a  single  case,  when  we  are 
called  on  to  ^pply  the  general  principles  of  established  law,  and  to  register  a  precedent  for 
the  futur:  action  of  the  court.  We  perform  a  single  and  unmixed  duty,  wlien  we  declare, 
upon  the  call  of  the  accused,  what  are  their  legal  rights," — MS.  Report. 

(b)  A  count,  for  a  revolt  may  be  joined  with  a  count  for  an  endeavour  to  commit  a  revolt, 
and  alter  a  ;;eneral  conviction,  judginciit  will  not  be  arrested  on  account  of  such  joinder. 
U.  S.  V.  Peteison,  1  Wood.  &,  iViin.  30.5. 

Qib)  U.  S.  c.  Veal,  .New  York,  1^47.    The  defendant  was  convicted. 


612  OFFENCES  AGAINST  SOCIETV. 

Fifth  count.  Sajne  as  first,  setting  out  the  endeavour  to  consist  in  a 
solicitation  of  others  to  neglect  their  duty,  ^-c. 

That  the  said  A.  B.,  C.  D.,  &c.,  heretofore  to  wit,  on,  &c., 

with  force  and  arms  on  the  high  seas,  out  of  the  jurisdiction  of  any 
particular  state  of  the  said  United  States  of  America,  on  waters  witliin 
the  admirahyand  maritime  jurisdiction  of  the  said  United  States,  and 
within  the  jurisdiction  of  this  court,  in  and  on  board  of  a  certain 
American  vessel,  being  a  called  the  whereof  one  G.  H. 

was  then  and  there  the  master  and  commander,  did  then  and  there 
endeavour  to  make  a  revolt  on  board  of  said  called  the 

in  this,  that  they  the  said  A.  B.,  C.  D.,  &c.,  did  then  and  there  solicit, 
incite  and  stir  up  others  of  the  crew  of  the  said  called  the 

to  the  jurors  aforesaid  unknown,  to  neglect  their  proper  duty  on 
board  of  the  said  called  the  they  the  said  being 

then  and  there  of  the  crew  of  the  said  called  the 

against,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Sixth  count. 

{Like  fifth   count,  substituting) :    "  did  then  and  there  solicit, 
incite  and  stir  up  others  of  the  crew  of  the  said  vessel,  being  a 
called  the  to  the  jurors  aforesaid  unknown,  to  disobey  and 

resist  tlie  lawful  orders  of  the  said  the  master  of  the  said 

called  the  ,"  for  "  did  then  and  there  solicit,  incite  and  stir  up 

others  of  the  crew  of  the  said  called  the  to  the  jurors 

aforesaid  unknown,  to  neglect  their  proper  duty  on  board  of  the  said 
called  the  ." 

Seventh  count. 

(Like  sixth  count,  substituting):-  "did  then  and  there  solicit, 
incite  and  stir  up  other  and  others  of  the  crew  of  the  said  vessel, 
being  a  called  the  to  the  jurors  aforesaid  unknown,  to 

betray  their  proper  trust  on  board  thereof,  they  the  said  then 

and  there  being  of  the  crew  of  the  said  called  the 

against  the  peace,  &c.,"  for  "did  then  and  there,"  &c. 

Eighth  count.  Same  as  first  count,  setting  out  the  endeavour  to  con- 
sist in  an  assemblage  of  the  crew  in  a  riotous  manner,  Sfc. 

And  the  jurors  aforesaid  on  their  oath  aforesaid,  do  further  pre- 
sent, that  the  said  lieretofore,  on  the  day  of  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  with  force 
and  artns  on  the  high  seas,  out  of  the  jurisdiction  of  any  particular 
state  of  the  said  United  States  of  America,  on  waters  within  the  ad- 
miralty and  maritime  jurisdiction  of  the  said  United  States,  and 
within  the  jurisdiction  of  this  court,  in  and  on  board  of  a  certain 
American  vessel,  being  a  called  the  whereof  one 
was  then  and  there  the  master  and  commander,  did  then  and  there 
endeavour  to  make  a  revolt  in  and  on  board  of  said  called  the 
in  this,  that  they  the  said  did  then  and  there  assemble 
with  others  of  the  crew  of  the  said  vessel,  to  the  jurors  aforesaid 
unknown,  in  a  tunuiltuous  and  mutinous  manner,  they  the  said 
jjeing  then  and  there  of  the  crew  of  the  said  called  the 
against,  &c.,  and  against,  &c.    {Conclude  as  in  book  Y.cfiap.  S). 

Ninth  count 

{Like  eighth  count,  inserting xifter):  "in  a  tumultuous  and  muii- 


REVOLT,   &C.  GI3 

noiis  manner,"  "  in  and  on  board  of  said  called  tlie  and 

did  then  and  there  make  a  riot  in  and  on  board  of  the  said 
called  the  ." 

Tenth  cotint.     Same  as  first,  laying  ike  time  with  a  continuendo. 

{^or  filial  count,  see  p.  17,  97  n,  123  n). 

Rioting  on  board  skip. 

That  A.  B.,  C.  D.,  &c.,  heretofore,  on,  &c.,  with  force  and  arms  on 
the  high  seas,  out  of  the  jurisdiction  of  any  particular  state  of  the 
said  United  States,  on  waters  within  the  admiralty  and  maritime 
jurisdiction  of  the  said  United  States,  and  within  the  jurisdiction  of 
this  court,  in  and  on  board  of  a  certain  American  vessel,  being  a 
called  the  whereof  one  G.  H.  was  then  and  there  mas- 

ter and  commander,  did  then  and  there  make  a  riot  in  and  on  board 
of  the  said  called  the  they  the  said  A.  B.,  C.  D.,  then 

and  there  being  of  the  crew  of  the  said  called  the 

against,  &c.,  and  against,  &c.     (Conclude  as  in  book  1,  chap.  3). 

Second  count.    .Endeavouring  to  revolt,  (^c,  by  rioting,  ^-c. 

That  the  said  A.  B  ,  C.  D.,  heretofore,  on,  &c.,  witlfforce  and  arms 
on  the  high  seas,  out  of  the  jurisdiction  of  any  particular  state  of  the 
said  United  States,  on  waters  within  the  admiralty  and  maritime  juris- 
diction ofthe  said  United  States,and  within  the  jurisdiction  of  this  court, 
in  and  on  board  of  a  certain  American  vessel,  being  a  called  the 

whereof  one  G.  H.  was  then  and  there  master  and  command- 
er, did  then  and  there  endeavour  to  make  a  revolt  in  and  on  board 
of  said  called  the  in   this,  that  they  the  said  did 

then  and  there,  to  wit,  on  board  of  said   vessel,  being  a  called 

the  assemble  with  some  other  person  or  persons,  to  the  jurors 

aforesaid  unknown,  then  and  there  being  of  the  crew  and  company 
of  said  called  the  in  a  tumultuous  and  mutinous  manner, 

and  did  then  and  there  make  a  riot  in  and  on  board  of  the  said 
called  the  they  the  said  then  and  there   being  of 

the  crew  ofthe  said  called  the  against,  &c.,  and  against, 

&c.     {Conclude  as  in  book  1,  chap.  3). 

(For  final  count,  see  p.  17,  97  n,  123  n). 

Confining  the  master,  SfC. 

That  heretofore,  to  wit,  on,  &c.,  with  force  and  arms  on  the 

high  seas,  out  of  the  jurisdiction  of  any  particular  state  of  the  said 
United  States  of  America,  on  waters  within  the  admiralty  and  mari- 
time jurisdiction  ofthe  said  United  States,  and  within  the  jurisdiction 
of  this  court,  in  and  on  board  of  a  certain  American  vessel,  being  a 
called  the  whereof  one  G.  H.  was  then  aiid   there  the 

master  and  commander,  did  then  and  there  unlawfully  confine  the 
said  he  the  said  then  and  there   being  the  master  and 

belonging  to  the  company  of  said  called  the  and  they 

the  said  then  and  there  being  of  the  crew  of  the  said 

called  the  against,  &c.,  and  against,  &c.     {Conclude  as 

in  book  1,  chop.  3). 

{For  final  count,  see  p.  17,  97  7i,  123  n). 
52 


614  OFFENCES  AGAINST  SOCIETY. 

Piratically  and  feloniously  runnirig  away  with  a  vessel,  and  aiding  and 
abetting  therein,  <^c.,  and  assaulting  master.  First  count,  running 
away  icith  vessel. {c) 

That  A.  B.,  late  of,  &c.,  mariner,  C.  D.,  late  of,  &c.,  mariner,  and 
E.^F.,  late  of,  &c.,  mariner,  heretofore,  to  wit,  on,  &lc.,  with  force  and 
arms  upon  the  high  seas,  out  of  the  jurisdiction  of  any  particular  state 
of  the  United  States  of  America  and  within  the  jurisdiction  of  this 
court,  did  piratically  and  feloniously  run  away  with  a  certain  vessel, 
being  a  called  the  belonging  and  appertaining  to  a  per- 

son or  persons,  then  being  a  citizen  or  citizens  of  the  United  States  of 
America,  but  whose  names  are  to  the  said  jurors  unknown,  they  the 
said  A.  B.,  C.  D.,  E.  F.,  then  and  there  being  mariners  of  said  vessel, 
against,  &c.,  and  against.  Sic.     [Conclude  as  in  book  1,  chap.  3). 

Second  count. 

(Same  as  first  count,  substituting):  "belonging  and  appertaining 
to  G.  H.,  I.  K.,  L.  M.,  then  being  citizens  (or  a  citizen)  of  the  United 
States  of  America,"  for  "belonging  and  appertaining  to  a  person  or 
pertsons  then  being  a  citizen  or  citizens  of  the  United  States  of 
America,  but  whose  names -are  to  the  said  jurors  unknown." 

Third  count.     Running  away  uAlh  goods,  ^-c. 

That  A.  B.,  C.  D.,  &c.,  heretofore,  to  wit,  on,  &c.,  with  force  and 
arms  upon  the  high  seas,  out  of  the  jurisdiction  of  any  particular  state 
of  the  United  States  of  America  and  within  the  jurisdiction  of  this 
court,  in  and  on  board  of  a  certain  vessel,  being  a  called  the 

belonging  and  appertaining  to  I.  K.,  L.  M.,  then  being  citizens 
(or  a  citizen)  of  the  United  States  of  America,  they  the  said  A.  B.,  C. 
I).,  &LQ,.,  being  then  and  there  mariners  of  said  vessel,  did  then  and 
there  piratically  and  feloniously  run  away  with  the  following  goods 
and  merchandise,  to  wit,  [here  particularize  the  articles  and  value 
of  each),  in  and  on  board  the  said  vessel,  then  being  ol  the  goods  and 
chattels  of  some  person  or  persons  to  the  jurors  aforesaid  unknown, 
against,  &c.,  and  against,  &c.    {Conclude  as  in  book  1,  chap.  3). 

Fourth  count.     Same  slated  more  specially. 

That  heretofore,  to  wit,  on,  &.C.,  with  force  and  arms  upon  the  high 
seas,  out  of  the  jurisdiction  of  any  particular  state  of  the  said  United 
States  of  America  and  within  the  jurisdiction  of  this  court,  did  pirati- 
cally and  feloniously  run  away  with  the  following  godds,  wares  and 
merchandise,  to  wit,  [here  specify  articles  as  in  preceding  count),  of 
the  goods  and  chattels  of  all  which  goods,  wares  and  merchant 

disc  were  then  and  there  in  and  on  board  a  certain  vessel,  being  a 
called  the  owned  by  the  said  I.  K.,  L.  M.,  N.  0.,  citi- 

zens of  the  United  States  of  America,  they  the  said  I.  K.,  L.  M.,  &.C., 
being  then  and  there  mariners  of  the  said  vessel,  against,  &c.,  and 
against,  &c.    [Conclude  as  in  book  I,  chap.  3). 

Fifth  count 

[Same  as  fourth  count,  substituting):  "the  following  goods  and 
merchandise,  to  wit,  [/lere  specify  some  of  tfic  wearing  appai^el,  4'C., 

(e)  United  Sl:itc8  p.  Babe,  Circuit.  C:ourt,  New  York,  1844.  Tiic  dcfcnrlant  was  con- 
vinted  and  sentenced,  liut  was  afterwards  pardoned. 


REVOLT,  &C.  615 

of  any  of  the  officers  or  others),  of  the  goods  and  chattels  of  some 
person  or  persons  to  the  said  jurors  unknown,  all  which  said  goods 
and  merchandise  were  then  and  there  in  and  on  board  a  certain  ves- 
sel, being  a  called  the  owned  in  whole  or  in  part  by  I. 
K.,  a  citizen  of  the  United  Stales  of  America,"  for  "the  following 
goods,  wares  and  merchandise,  to  wit,  (  ),  of  the  goods  and 
chattels  of  I.  K.,  all  which  goods,  wares  and  merchandise  were  then 
and  there  in  and  on  board  a  certain  vessel,  being  a  called  the 
owned  by  the  said  citizens  of  the  United  States  of 
America." 

Sixth  count.     Assaulting  master  and  running  array  vit/i  goods,  ^c. 

That  A.  B.,  C.  D.,  &c.,  heretofore,  to  wit,  on,  &c.,  with  force  and 
arms  upon  the  high  seas,  out  of  the  jurisdiction  of  any  particular  state 
of  the  said  United  States  of  America  and  within  the  JLU'isdiction  of 
this  court,  in  and  on  board  of  a  certain  vessel,  being  a  called 

the  owned  by  I.  K.,  L.  JVL,  citizens  (or  a  citizen)  of  the  said 

United  States  of  America,  then  and  there  piratically  and  feloniously 
did  assault  one  G.  H.,  the  said  then  and  there  being  the  master 

and  commander  of  said  and  did  then  and  there  upon  the  high 

seas  aforesaid,  in  and  on  board  of  said  called  the  out  of 

the  jurisdiction  of  any  particular  state  of  the  said  United  States  and 
within  the  jurisdiction  of  this  court,  piratically  and  feloniously  put 
the  said  G.  H.,  being  such  master  as  aforesaid,  in  great  bodily 

fear  and  danger  of  his  life,  and  the  said  called  the  and 

the  tackle  and  apparel  of  the  said  of  the  value  of  dollars, 

together  with,  {^specify  articles  and  value  as  hi  third  count),  of  the 
goods  and  chattels  of  R.  S.,  T.  V.,  &,c.,  citizens  of  the  United  States 
of  America,  {here  specify  articles  as  in  fifth  count),  all  of  which  said 
goods,  wares  and  merchandise  were  then  and  there  in  and  on  board 
of  said  vessel,  being  a  called  the  of  the  goods  and  chat- 

tels of  some  person  or  persons  to  the  jurors  aforesaid  as  yet  un- 
known, and  then  and  there  upon  the  high  seas  aforesaid,  in  the  place 
aforesaid,  and  within  the  jurisdiction  aforesaid,  being  under  the  care 
and  custody  and  in  the  possession  of  the  said  G.  H.,  being  then  and 
there  the  master  and  conmiander  of  said  schooner  as  aforesaid,  they 
the  said  A.  B.,  C,  D.,  &c.,  with  force  and  arms,  from  the  care,  custody 
and  possession  of  the  said  then  and  there,  to  wit,  upon  the  high 

seas  aforesaid,  in  the  place  aforesaid,  arid  within  the  jurisdiction 
aforesaid,  piratically,  feloniously  and  against  the  will  and  consent  of 
the  said  G.  H.,  did  steal,  take  and  run  away  with,  against,  &.C.,  and 
against,  &c.     [Conclude  as  in  book  1,  chap.  3), 

Seventh  count.  Against  -principal  offender  for  running  aicay  ivith 
vessel. 

That  (here  insert  the  nayne  of  the  person  most  de  ply  concerned), 
late  of,  &,c.,  heretofore,  on,  &.c,,  with  force  and  arms  on  the  high  seas, 
out  of  the  jurisdiction  of  any  particular  state  of  the  United  States  of 
America,  within  the  admiralty  and  maritime  jurisdiction  of  the  said 
United  States  and  within  the  jurisdiction  of  this  court,  did  piratically 
and  feloniously  run  away  with  a  certain  other  vessel,  being  a 
called  the  belonging  and  appertaining  to  I.  K.,  citizens  (or  a  citi- 

zen) of  the  United  Slates  of  America,  he  the  said  A.  B.,  then  and 


616  OFFENCES  AGAINST  SOCIETY. 

there  being  a  mariner  of  said  vessel,  contrary,  &c.,  and  against,  &:c. 
{Conclude  as  in  book  1,  chap.  3). 

Eighth  count.     Against  others  as  accessaries. 

Thiat  W.'B.,  late  of,  &c.,  mariner,  and  [or  if  more,  recite  separately 
us  before),  C.  K.,  late  of,  &c.,  mariner,  before  the  said  piracy  and 
felony  was  committed  in  form  aforesaid,  to  wit,  on,  &c.,  on  the  high 
seas,  out  of  the  jurisdiction  of  any  particular  state  of  the  said  United 
States  of  America  and  within  the  jurisdiction  of  this  court,  with  force 
and  arms  did  unlawfully  and  feloniously,  knowingly  and  wittingly 
aid  and  assist,  procure,  command,  counsel  and  advise  the  said 
the  piracy  and  felony  last  aforesaid,  in  manner  and  form  last  afore- 
said, to  do  and  commit,  against,  &c.,  and  against,  &c.  {Conclude  as 
in  book  1,  chap.  3). 

{For  final  count,  see  p.  17,  97  n,  123  n). 

Breaking  and  boarding  a  ship,  assaulting,  6fC.,  the  a'ew  and  stealing, 
dfc,  the  cargo.{d) 

That  J,  P.,  {a)id  others,  naming  them),  of,  &c.,  on,  &c.,  upon  the 
high  sea,  out  of  the  jurisdiction  of  any  particular  state,  did  piratically 
and  feloniously  set  upon,  board,  break  and  enter  a  certain  ship  called 
the  then  and  there  being  a  ship  belonging  to  certain  persons  to 

the  jurors  aforesaid  unknown,  and  then  and  there  piratically  and 
feloniously  did  make  an  assault  in  and  upon  certain  persons  whose 
names  are  to  the  jurors  aforesaid  unknown,  being  mariners  in  the 
same  ship,  and  then  and  there  piratically  and  feloniously  did  put  the 
aforesaid  persons,  mariners  of  the  same  ship  as  aforesaid  and  in  the 
ship  aforesaid  then  and  there  being,  in  personal  fear  and  danger  of 
their  lives,  then  and  there  in  the  ship  aforesaid  upon  the  high  sea 
aforesaid,  and  out  of  the  jurisdiction  of  any  particular  state  as  afore- 
said; and  piratically  and  feloniously  did  then  and  there  steal,  take 
and  carry  away  five  hundred  boxes  of  sugar  of  the  value  of  twenty 
thousand  dollars,  {here  set  forth  all  the  articles  stolen  luith  the  value 
of  each),  o{  the  goods  and  chattels  of  certain  persons  to  the- jurors 
aforesaid  unknown,  then  and  there  upon  the  high  sea  aforesaid,  out 
of  the  jurisdiction  of  any  particular  state,  being  found  in  the  atbre- 
said  ship  in  custody  and  possession  of  the  said  mariners  of  the  said 
ship,  from  the  said  mariners  in  the  said  ship  and  from  their  custody 
and  possession  then  and  there  upon  the  high  sea  aforesaid,  out  of  the 
jurisdiction  of  any  particular  state  as  aforesaid  ;  against,  &c.,  and  con- 
trary, &c.     {Conclude  as  in  book  1,  chap.  3). 

{For  final  count,  see  p.  17,  97  n,  123  n). 

Piratically  breaking  into,  taking  and  carrying  away  a  ship  and  certain 
goods  on  board  the  same.{e) 

That  C.  D.,  late  of,  &c.,  mariner,  {and  eight  others  with  the  like 
additions),  on,  &c.,  with  force  and  arms  upon  the  high  seas,  out  of 


id)  Dnvis'  Proc.  227.     Tliis  was  the  form  in  U.  S.  v.  Palmer,  3  Wheat.  61 1. 

(p)   I/Cwis'  Or.  Law  G  l.'i. 


REVOLT,   &C.  617 

set  upon,  board,  break  and  enter  a  certain  merchant  ship  called  the 
Governor  Strong,  then  being  a  ship  belonging  exclusively  to  ciiizens 
of  the  United  States  to  the  said  jurors  as  yet  unknown,  and  tiien  and 
there  piratically  and  feloniously  did  assault  certain  mariners  whose 
names  to  the  said  jurors  are  also  yet  unknown,  in  the  same  ship  and 
in  the  peace  of  the  said  United  States  then  and  there  being;  and  did 
then  and  there  upon  the  high  sea  aforesaid,  out  of  the  jurisdiction  of 
any  particular  state,  ])iratically  and  feloniously  put  the  said  mariners 
in  great  fear  and  bodily  danger  of  tlieir  lives;  and  the  said  merchant 
ship  and  the  apparel  and  tackle  of  the  same  of  the  value  of  three 
thousand  dollars,  together  with  seventy  chests  of  opium  of  the  value 
of  five  thousand  dollars,  then  being  in  and  on  board  the  same  ship, 
of  the  goods  and  chattels  of  certain  citizens  of  the  United  States  to 
the  said  jurors  yet  unknown  ;  and  then  and  there  upon  the  high  sea 
aforesaid,  out  of  the  jurisdiction  of  any  particular  state,  being  under 
the  care  and  custody  and  in  the  possession  of  the  mariners  aforesaid, 
they  the  said  C.  D.,  [and  others,  naming  them),  from  the  care,  cus- 
tody and  possession  of  the  mariners  aforesaid,  then  and  thert^,  to  wit, 
upon  the  high  sea  aforesaid,  out  of  the  jurisdiction  of  any  particular 
state,  piratically,  feloniously  and  by  force  and  violence  and  against 
the  will  of  the  mariners  aforesaid,  did  steal,  rob,  take  and  run  away 
with;  against,  &c.,  and  contrary,  &c.  {Co7iclude  as  in  book  1, 
chap.  3). 

{For  final  count,  see  p.  17,  97  n,  123  n). 

Against  a  seaman  for  laying  violent  hands  upon  his  commander,  with 
intent  to  -prevent  his  fighting  in  defence  of  his  ship.{f) 

That  A.  B.  of,  &c.,  on,  &c.,  on  the  high  sea,  out  of  the  jurisdiction 
of  any  particular  state,  lie  the  said  A.  B.  then  and  there  being  a  sea- 
man on  board  a  certain  ship  called  the  belonging  exclusively 
to  certain  citizens  of  the  said  United  States  to  the  jurors  aforesaid  yet 
unknown,  in  and  upon  the  body  of  one  C.  D.,  he  the  said  C.  D.  then 
and  there  being  the  commander  of  the  said  ship  called  the  on 
the  high  sea  aforesaid,  out  of  the  jurisdiction  of  any  particular  state, 
feloniously  and  piratically  did  make  an  assault ;  and  that  the  said  A. 
B.  being  then  and  there  such  seaman  as  aforesaid  in  and  on  board 
the  ship  aforesaid,  feloniously  and  piratically  did  lay  violent  hands 
upon  him  the  said  C.  D,,  commander  of  said  ship  as  aforesaid,  and 
the  commander  of  him  the  said  A.  B.  on  board  the  same  ship,  with 
intent  thereby  piratically  and  feloniously  to  hinder  and  prevent  him 
the  said  C.  J).,  commander  of  said  ship  as  aforesaid,  from  fighting  in 
defence  of  his  said  ship,  and  of  the  goods  and  chattels  then,  &c. 

Attempting  to  corrupt  a  seaman  to  turn  marauder  and  to  run  away  with 
a  ship.{g) 

That  J.  P.,  late  of,  &c.,  marmer,  on,  &c.,  on  the  high  seas,  out  of 

(/)  Davis' Free.  225. 

(g)  U.  S.  V.  Paschal.  Under  this  indictment,  which  was  prepared  by  Mr.  A.  J.  Dallas 
in  IdlO,  the  defendant  was  convicted  and  sentenced. 

52* 


618  OFFENCES  AGAINST  SOCIETY. 

the  jurisdiction  of  any  particular  state  of  the  said  United  States  and 
within  the  jurisdiction  of  tliis  court,  heing  then  and  there  a  seaman 
in  and  on  board  of  a  certain  schooner  called  the  Concord,  then  and 
there  belonging  and  appertaining  to  W.  M.  of  the  said  district,  mari- 
ner, and  J.  C.  of  the  said  district,  merchant,  both  citizens  of  the  said 
United  States,  of  whicli  schooner  the  said  W.  M.  was  also  then  and 
there  master,  did  then  and  there  with  force  and  arms  in  and  on  board 
of  the  said  schooner,  upon  the  high  seas,  out  of  the  jurisdiction  of 
any  particular  state  of  the  said  United  States  and  within  the  jurisdic- 
tion of  this  court,  wilfully  and  unlawfully  attempt  and  endeavour  to 
corrupt  a  certain  W.  S.,  then  and  there  being  a  mariner  in  and  oii 
board  of  the  said  schooner  then  and  there  being,  to  turn  pirate  and 
then  and  there  to  run  away  with  the  said  schooner  and  certain  goods, 
wares  and  merchandises  then  and  there  on  board  of  the  said  schooner, 
being,  to  wit,  on  the  high  seas,  out  of  the  jurisdiction  of  any  particu- 
lar state  of  the  said  United  States  and  within  the  jurisdiction  of  this 
court,  contrary,  &c,,  and  against,  &c.  [Conclude  as  in  book  1, 
chap.  3). 

That  he  the  said  J.  P.,  late  of,  &c.,  mariner,  on,  &c.,  on  the  high 
seas,  out  of  the  jurisdiction  of  any  particular  state  of  the  said  United 
States  and  within  the  jurisdiction  of  this  court,  then  and  there  a  sea- 
man in  and  on  board  of  a  certain  schooner  called  the  Concord,  then 
and  there  being,  which  schooner  then  and  there  belonged  and  apper- 
tained to  the  said  W.  M.,  late  of  the  said  district,  mariner;  and  J.  C. 
aforesaid,  late  of  the  said  district,  merchant,  both  citizens  of  the  said 
United  States,  and  of  which  schooner  the  said  W.  M.  was  also  then 
and  there  master,  did  then  and  there  with  force  and  arms  in  and  on 
board  of  the  said  schooner,  upon  the  high  seas,  out  of  the  jurisdiction 
of  any  particular  state  of  the  said  United  States  and  within  the  ju-ris- 
diction  of  this  court,  wilfully  and  unlawfully  endeavour  to  make  a 
revolt  in  the  said  schooner,  contrary,  &c.,  and  against,  &c.  (Con- 
clude as  171  book  1,  chap.  3). 

{For  final  count,  see  ji.  17,  97  7i,  123  n). 

Against  an  accessary  to  a  piracy  before  the  fact.{li) 

{Set  farth  the  charge  against  the  principal  as  in  the  preceding 
precedents,  as  the  case  7nay  be,  and  then  proceed  as  follows) :  "  that 
E.  F.  of,  &c.,  before  the  piracy  and  felony  aforesaid  was  committed 
in  manner  and  form  aforesaid,  to  wit,  on  the  said  day  of 

in  the  year  aforesaid,  on  the  high  sea,  out  of  the  jurisdiction  of  any 
particular  state,  did  piratically  and  feloniously,  knowingly  and  wit- 
tingly aid  and  assist,  procure,  command,  counsel  and  advise  the  said 
A.  B.  the  piracy  and  felony  aforesaid  to  do  and  commit.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid  do  further  present,  that  the 
felony  and  piracy  aforesaid  so  as  aforesaid  done  and  committed  by 
the  said  A.  li.,  did  affect  the  life  of  him  the  said  A.  B. ;  and  that  the 
said  A.  B.  did  do  and  commit  the  piracy  and  felony  aforesaid  in  man- 
ner aforesaid,  upon  the  high  sea,  without  the  jurisdiction  of  any  par- 
the  jurisdiction  of  any  particular  state,  did  piratically  and  feloniously 

(t)  Davis'  Prfic.  2^6.. 


REVOLT,  &.C.  619 

ticiilar  state,  upon  and  in  pursuance  of  the  aid,  assistance,  procure- 
ment, command,  counsel  and  advice  aforesaid,  of  the  said  E.  F.,  given 
and   rendered  as  aforesaid  to  tiie  said  A.  B.  by  him  the  said  E.  F. ; 
against,  &c.,  and  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 
{For  final  count,  see  p.  17,  97  n,  123  n). 

Against  an  accessary  to  a  piracy  after  ihefact.{i) 

{Set  forth  the  charge  against  the  principal,  as  in  the  preceding 
precedents,  us  the  case  may  be,  and  then  proceed  as  follows) :  That 
E.  F.,  of,  &c.,  afterwards,  to  wit,  on,  &c.,  on  the  high  seas,  {or  on  the 
land,  if  such  he  the  fact,  naming  the  place),  out  of  the  jurisdiction 
of  any  particular  state, -well  knowing  that  the  said  A.  B.  had  done 
and  committed  the  felony  and  piracy  aforesaid,  did  knowingly  en- 
tertain and  conceal  the  said  A.  B.,  and  did  knowingly  receive  and 
take  into  the  custody  of  him  the  said  E.  F.  the  said  vessel,  goods  and 
chattels,  which  had  been  by  the  said  A.  B.  piratically  and  feloniously 
taken  as  aforesaid,  he  the  said  E.  F.  then  and  there  well  knowing 
the  same  to  have  been  piratically  and  feloniously  taken  as  aforesaid, 
against,  &c.,  and  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

{For  final  count,  see  p.  17,  97  n,  123  n). 

Fitting,  equipping  and  preparing,  and  being  concerned  in  filing,  SfC, 
vessels  for  the  slave  trade  in  ports  of  the  United  States,  as  master  or 
owner,  under  the  act  of  20th  April,  1818,  2d  and  3d  s.{j) 

That  C.  F.,late  of,  &c.,  (merchant,  labourer,  mariner  or  otherwise), 
after  the  passing  of  the  act  of  congress  of  the  United  States  of  Ameri- 
ca, entitled  "  an  act  in  addition  to  'an  act  to  prohibit  the  introduction 
of  slaves  into  any  port  or  place  within  the  jurisdiction  of  the  United 
States,  from  and  after  the  first  day  of  January,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  eight,'  and  to  repeal  certain 
parts  of  the  same,"  that  is  to  say,  after  the  twentieth  day  of  April,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  eighteen, 
to  wit,  on,  &c.,  in  the  year  of  at  the  port  of  in  the 

district  of  within  the  jurisdiction  of  the  United  States,(^) 

and  within  the  jurisdiction  of  this  court,  did  for  himself  as  master, 
(he  tlie  said  then  and  there  being  a  citizen  of  the  said  United 

States),  fit,(/)  equip,  load  and  prepare  a  certain  vessel,  being  a 
called  the  for  the  purpose  of  procuring,  and  with  the  intent  to 

employ {m)  said  in  the  trade  and  business  of  procuring  negroes, 

mulattoes  or  persons  of  colour,  from  some  foreign  kingdom,  place  or 
country  to  the  said  jurors  unknown,  to  be  transported  to  some  port 
or  place  to  the  said  jurors  unknown,  to  be  held,  sold  or  otherwise 

(t)  Davis'  Free.  p.  22G. 

(/')  U.  S.  V.  Davis,  U.  S.  Circuit  Court,  New  York,  1846.  The  defendants  were  acquitted, 
but  no  exception  was  taken  to  the  indictment. 

{k)  This  is  necessary.     U.  S.  v.  Goodinif,  \2  Wheat.  460. 

(l)  The  particulars  of  the  tilting,  &c.,  need  not  be  specified.  U.  S.  v.  Gooding,  12 
Wheat.  4GU.         , 

(?n)  "  With  intent  that  said  vessel  should  be  employed,"  is  defective.  The  words  in  the 
text  must  be  used. 


G20  OFFENCES    AGAIXST  SOCIETY. 

disposed  of  as  slaves,  or  to  be  held  to  service  or  labour,  against,  &c., 
and  against,  &c.     [Conclude  as  in  book  I,  chap.  3). 

Second  count. 

[Same  as  first  count,  substituting) :  "from  a  foreign  country,  to 
wit,  from  the  continent  of  Africa, "ybr  "  from  some  foreign  kingdom, 
place  or  country  to  the  said  jurors  unknown." 

Third  count. 

[Same  as  second  count,  substituting)  :  "  owner" /or  "master." 

Fonrlli  count. 

[Same  as  second  count,  substituting) :  "  did  for  some  other  per- 
son or  persons  to  the  said  jurors  unknown,  as  master," /or  "  did  for 
himself  as  master." 

Fifth  count.  Same  as  first,  hut  leavivg  out  allegation  that  offence  was 
after  the  act,  and  averring  defendant  caused  the  vessel  to  sail. 

Tiiat  the  said  C.  F.,  heretofore,  to  wit,  on,  &c.,  in  the  port  of 
a  port  or  place  within  the  jurisdiction  of  the  said  United  States,  and 
within  the  jurisdiction  of  this  court,  did  for  himself  as  master  (he  the 
said  then  and  there  being  a  citizen  of  the  said  United  States), 

cause  a  certain  ship  or  vessel,  being  a  called  the  to  sail 

from  the  port  of  a  port  or  place  within  the  jurisdiction  of  the 

said  United  States,  for  the  purpose  of  procuring,  and  whh  the  intent 
to  employ  said  t  in  the  trade  and  business  of  procuring  ne- 

groes, mulattoes  or  persons  of  colour,  from  some  foreign  kingdom, 
place  or  country  to  the  said  jurors  unknown,  to  be  transported  to 
some  port  or  place  to  the  said  jurors  also  unknown,  to  be  held,  sold 
or  otherwise  disposed  of  as  slaves,  or  to  be  held  to  service  or  labour, 
contrary  to  the  true  intent  and  meaning  of  the  act  of  congress  of  the 
United  States  of  America,  entited  "  an  act  in  addition  to  'an  act  to 
prohibit  the  introduction  of  slaves  into  any  port  or  place  within  the 
jurisdiction  of  the  United  States,  from  and  after  the  first  day  of 
January,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
eight,'  and  to  repeal  certain  parts  of  the  same,"  approved  on  twen- 
tieth day  of  April,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  eighteen. 

Sixth  count. 

[Same  as  fifth  count,  substituting) :  "  from  a  foreign  country,  to 
wit,  from  the  western  coast  of  the  continent  of  Africa,"  for  "  from 
some  foreign  kingdom,  place  or  country  to  the  said  jurors  unknown." 

Seventh  count. 

[Same  as  fifth  count,  substituting)  :  "did  as  owner,"  for  "did 
for  himself  as  master." 

Eighth  count. 

[Same  as  sixth  count,  substituting)  :  "did  as  owner,"  for  "did 
for  himself  as  master." 

JVinth  count. 

(Same  as  fifth  count,  substituting)  :  "  did  as  master,  for  some 
other  person  or  persons  to  the  jurors  aforesaid  as  yet  unknown," /or 
"did  for  himself  as  master." 

Tenth  count.     Preparing  the  vessel,  <^c. 

That  the  said  C.  F.,  heretofore,  to  wit,  on,  &c.,  in  the  port  of 
a  port  or  place  within  the  jurisdiction  of  the  said  United  States,  and 


REVOLT,    &C-  621 

witliin  the  jurisdiction  of  this  court,  did  for  himself  as  master  of  a 
certain  ship   or   vessel,  being  a  called  the  (he   the  said 

then  and  there  being  a  citizen  of  tlie  said  United  States),  pre- 
pare the  said  for  the  purpose  of  procuring,  and  with  the  intent 
to  employ  the  said  in  the  trade  and  business  of  procuring  ne- 
groes, mulattoes  or  persons  of  colour,  from  a  foreign  country,  to  wit, 
the  continent  of  Africa,  to  be  transported  to  some  port  or  place  to  the 
said  jurors  unknown,  to  be  sold  as  slaves,  against,  &c.,  and  against, 
&c.     {Conclude  as  in  book  1,  chap.  3). 

Eleventh  count. 

{Same  as  tenth  count,  suhst  it  lit  ins^) :  "did  for  some  person  or 
persons  whose  names  are  to  the  said  jurors  unknown,  as  master," 
ybr  "did  for  himself  as  master." 

Ticelfth  count. 

{Same  as  tenth  count, substituting)  :  "did  for  himself  as  owner," 
for  "  did  for  himself  as  master." 

Thirteenth  count.     Aiding  and  abetting  in  preparivg,  SfC.{n) 

That  C.  F.,  late  of,  &c.,  mariner,  heretofore,  to  wit,  on,  &c.,  in 
the  port  of  a  port  or  place  within  the  jurisdiction  of  the  said 

United  States,  and  within  the  jurisdiction  of  this  court,  did  as  master 
of  a  certain  ship  or  vessel,  being  a  called  the  (he  the 

said  then  and  there  being  a  citizen  of  the  said  United  States), 

aid  and  abet  in  fitting,  equipping,  loading  or  otherwise  preparing  the 
said  for  the  purpose  of  employing  the  said  called  the 

{proceed  and  conclude  as  in  fifth  count,  from  t). 

Fourteenth  count. 

{Same  as  thirteenth  count,  substituting):  "owner"/or  "  master." 

{For  fined  count,  see  p.  17,  97  Ji,  123  7i). 

Serving  on  board  of  a  vessel  engaged  in  the  slave  trade,  under  act  of 
10th  May,  1800,  2d  and  3d  s.     First  count,  the  vessel  being  American. 

That  A.  B.,  late  of,  &c.,  heretofore,  to  wit,  on,  &c.,on  the  high  seas, 
out  of  the  jurisdiction  of  any  particular  state  of  the  said  United  States, 
on  waters  within  the  admiralty  and  maritime  jurisdiction  of  the  said 
United  States,  and  within  the  jurisdiction  of  this  court,  did  voluntarily 
serve  on  board  a  certain  vessel  being  a  called  the  which 

said  called  the  was  then  and  there  a  vessel  of  the  United 

States,  and  was  then  and  there  employed  and  made  use  of  in  the 
transportation  of  slaves  from  some  foreign  country  or  place  to  the  said 
jurors  unknown,  he  the  said  A.  B.  then  and  there  being  a  citizen  of 
the  United  States  of  America,  against,  &.C.,  and  against,  &.c.  [Con- 
clude as  in  book  1,  chap.  3). 

Second  count,  the  vessel  being  foreign. 

That  A.  B.,  late  of,  &c.,  heretofore,  to  wit,  on,  &c.,  on  the  high  seas, 
out  of  the  jurisdiction  of  any  particular  state  of  the  said  United  States, 
on  waters  within  the  admiralty  and  maritime  jurisdiction  of  the  said 
United  States,  and  within  the  jurisdiction  of  this  court,  did  voluntarily 
serve  on  board  a  certain  vessel  beins;  a  called  the  which 

(n)  It  would  even  seem  unnecessary  nnder  the  statute,  that  there  should  appear  on  the 
record  any  |)rincij)al  otT-nder  to  whom  the  dciendant  laiglil  be  aiding  or  abLtlmg.  U.  ri. 
V.  Gooding,  12  Wheat  4CU. 


622  OFFENCES  AGAINST  SOCIETY. 

said  called  the  was  then  and  there  a  foreign  vessel,  and 

was  then  and  there  employed  in  the  slave  trade,  he  the  said  A.  B, 
being  then  and  there  a  citizen  of  the  United  States  of  America,  against, 
&c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Third  count.     Same  as  first,  stated  more  specially. 

That  A.  B.,  late  of,  &c.,  heretofore,  to  wit,  from,  &c.,  to,  &c.,  and 
during  all  the  time  between  the  said  days,  on  the  high  seas,  out  of 
the  jurisdiction  of  any  particular  state  of  the  said  United  States,  on 
waters  within  the  admiralty  and  maritime  jurisdiction  of  the  said  Unit- 
ed States,  and  within  the  jurisdiction  of  this  court,  did  voluntarily 
serve  on  board  a  certain  vessel  being  a  called  the  .  which 

said  called  the  was  then  and  there  a  vessel  of  the  United 

States,  and  was  then  and  there  employed  and  made  use  of  in  the 
transportation  of  slaves  from  some  foreign  country  or  place  to  the  said 
jurors  unknown,  to  some  other  foreign  country  or  place  to  the  said 
jurors  also  unknown,  he  the  said  A.  B.  being,  during  all  the  time  afore- 
said, a  citizen  of  the  United  States  of  America,  against,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Fourth  count. 

{Same  as  third  count,  inserting):  "  a  foreign  vessel,"  instead  of'-^di. 
vessel  of  the  United  States." 

{For final  count,  see  p.  17,  97  ji,  123  ?i). 

Another  foi'm  for  the  same.{o) 

That  on,  &c.,  a  certain  schooner  called  the  Matilda,  was  a  vessel  of 
the  said  United  States,  and  being  so  a  vessel  of  the  said  United  States, 
was  unlawfully  and  voluntarily  employed  and  made  use  of  in  the 
transportation  and  carrying  of  slaves  from  one  foreign  place  to  another, 
to  wit.  from  the  Island  of  Bravo  in  Africa,  a  foreign  place,  to  the  Isl- 
ands of  St.  Nicholas,  Bonavista,  Mayo  and  St.  Jago,  all  foreign  places, , 
in  Africa  aforesaid  ;  and  that  J,  S.  II.,  late  of  the  district  aforesaid, 
mariner,  a  citizen  of  tiie  said  United  States,  then  and  there  mate  of 
the  said  schooner  Matilda,  did  then  and  there,  within  the  jurisdiction 
of  this  court,  voluntarily  and  unlawfully  serve  in  the  capacity  and 
station  of  mate  aforesaid  on  board  the  said  vessel,  the  same  being  then 
and  there  unlawfully  and  voluntarily  employed  and  made  use  of  in 
the  transportation  and  carrying  of  slaves  from  one  foreign  place  to 
another  as  aforesaid,  against,  &.C.,  and  against,  &c.  (Conclude  as  in 
book  1,  chap.  3). 

{Fur  final  count,  see  p.  17,  97  n,  123  n). 

Fitting  out  slaver,  ^-c. 

That  P.  H.,  after  the  twentieth  day  of  April,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  eigliteen,  to  wit,  on,  &c.,  and 
on  divers  days  and  times  before  and  since  said  last  mentioned  day, 
and  after  the  said  twentieth  day  of  April,  in  the  year  oC,  &c.,  with  force 
and  arms  upon  the  high  seas  and  without  the  jurisdiction  of  any  par- 
ticular state,  but  within  the  jurisdiction  of  the  United  States,  did  as 

(n)  In  ncitlier  tliis  nor  tlie  last  indictment  wrre  the  defendants  tried.  The  fust  was 
prepared  in  New  York  and  tlie  lullcr  in  Pliiladelpliia. 


REVOLT,  &C.  G23 

master  of  or  some  other  person  whose  name  is  to  the  jurors  aforesaid 
as  yet  unknown,  cause  a  certain  vessel  called  the  "  Spitfire"  to  sail  from 
a  port  within  the  jurisdiction  of  the  United  States,  to  wit,  the  port  of 
New  Orleans  in  the  State  of  Louisiana,  for  the  purpose  and  with  the 
intent  to  employ  said  vessel  in  the  trade  and  business  of  procuring 
negroes  and  persons  of  colour  from  a  foreign  place  or  country,  to  wit, 
from  that  place  and  country  called  Africa,  to  be  transported  to  a  place 
or  country  called  Cuba,  to  be  held,  sold  and  otherwise  disposed  of  as 
slaves,  the  said  vessel  called  the  Spitfire  having  betbre  her  being  caused 
to  sail  from  said  port  of  New  Orleans,  as  aforesaid,  and  after  the  said 
twentieth  day  of  April,  in  the  year,  &c.,to  wit,  on,  &c.,  and  on  several 
days  and  times  before  and  after  the  said  last  mentioned  day,  been  fit- 
ted and  equipped,  loaded  and  otherwise  prepared  by  a  person  or  per- 
sons, as  owner  or  owners  thereof,  whose  name  or  names  being  to  the 
said  jurors  as  yet  unknown,  in  a  port  within  the  jurisdiction  of  the  Unit- 
ed States,  to  wit,  the  said  port  of  New  Orleans,  in  the  said  State  of 
Louisiana,  for  the  purpose  of  procuring  negroes  or  persons  of  colour 
from  a  foreign  place  or  country,  to  wit,  from  that  place  or  country 
called  Africa,  to  be  transferred  to  a  port  and  place  to  some  port  in  the 
place  and  country  called  the  Island  of  Cuba,  to  be  sold  and  disposed 
of  as  slaves,  against,  &c.     [Conclude  as  in  book  1,  chap.  3), 

That  heretofore  and  after  the  twentieth  day  of  April,  in  the  year, 
&c.,  a  certain  person  commonly  known  and  called  by  the  name  of 
D.  J.,  otherwise  called  D.  J.  M.,  did  for  himself  as  owner,  fit,  equip 
and  otherwise  prepare  a  certain  vessel  called  the  Spitfire,  in  a  port 
within  the  jurisdiction  of  the  United  States,  to  wit,  the  port  of  New 
Orleans,  in  the  State  of  Louisiana,  and  did  then  and  there  cause  the 
said  vessel  to  sail  and  be  sent  away  from  the  said  port  of  New  Or- 
leans, for  the  purpose  and  with  the  intent  of  employing  the  said  ves- 
sel in  the  trade  and  business  of  procuring  negroes  and  persons  of 
colour  from  a  foreign  country,  to  wit,  Africa,  to  be  transported  to  a 
place  and  country  called  Cuba,  to  be  held,  sold  and  disposed  of  as 
slaves,  contrary  to  the  form  of  the  statute  of  the  United  States  in  such 
case  made  and  provided;  and  that  he  the  said  P.  H.,  with  force  and 
arms  on  the  high  seas,  without  the  jurisdiction  of  any  particular  state 
and  within  the  jurisdiction  of  the  United  States,  on,  &.c.,  and  on  divers 
days  and  times  after  the  day  last  mentioned,  was  aiding  and  abetting 
therein  and  in  causing  the  said  vessel  to  sail  and  be  sent  away  from 
the  said  port  of  New  Orleans,  with  intent  and  for  the  puri)ose  to  em- 
ploy said  vessel  in  the  trade  and  business  of  procuring  negroes  and 
persons  of  colour  from  a  foreign  country,  to  wit,  Africa,  to  be  trans- 
ferred to  said  place  called  Cuba,  to  be  held,  sold  and  disposed  of  as 
slaves,  against,  &c.,and  contrary,  &c.  {Conclude  as  in  book  1,  chap.  3). 

{For final  count,  see  p.  17,  27  n,  123  n). 

Forcibly  confinivg  and  detaining  negroes  taken  from  the  coast  of  Jfrica 
with  intention  of  making  slaves  of  tlietn,  arid  for  aiding  and  abetting, 
under  act  of  1 5th  May,  1820,  s.  5. 

That  C.  F.  D.,  late  of,  &c.,  heretofore,  to  wit,  on,  &c.,  with  force 
and  arms  in,  &c.,  on  the  coast  of  Africa,  out  of  the  jurisdiction  of  any 


C24  OFFENCES  AGAINST  SOCIETY. 

particular  state  of  the  United  States  of  America,  on  waters  witliin 
the  admiralty  and  maritime  jurisdiction  of  this  court,  he  the  said 
then  and  there  being  *  one  of  the  ship's  company  of  a  certain 
vessel  being  a  called  the  owned  wholly  or  in  part  by  a 

citizen  or  citizens  of  the  United  States  of  America,  whose  names  are 
to  the  said  jurors  unknown,  did  **  piratically  and  feloniously,  forcibly 
confine  and  detain  negroes,  whose  names  are  to  the  said  jurors 

also  unknown,  in  and  on  board  of  the  said  vessel,  being  a 
called  the  with  the  intent  of  him  the  said  to  make  slaves 

of  the  aforesaid  negroes,  they  the  said  negroes  not  having 

been  held  to  service  by  the  laws  of  either  of  the  states  or  territories 
of  the  said  United  States  of  America,  against,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Second  counl. 

{Like  the  first  count,  except  instead  of):  "owned  wholly  or  in 
part  by  a  citizen  or  citizens  of  the  United  States,"  &c.,  insert,  "  which 
said  called  the  was  then  and  there  navigated  for  and  in 

behalf  of  a  citizen  or  citizens  of  the  United  States,"  &c. 

Third  count. 

{Same  as  first  to  *,  and  proceed) :  "  a  citizen  of  the  United  States 
of  America,  and  he  the  said  then  and  there  being  one  of  the 

ship's  company  of  a  certain  vessel  being  a  called   the 

whioli  said  vessel  being  a  called  the  was  then  and  there 

a  foreign  vessel,  engaged  in  the  slave  trade,  did,"  &c.,  {here  proceed 
and  conclude  as  in  first  count,  from  **). 

Fourth  count.  Same  as  ^rst  count;  against  a  part  of  defendants  as 
principals  and  the  others  as  accessaries. 

That  C.  F.  D.,  late  of,  &c.,  together  with  certain  other  persons  to 
the  jurors  aforesaid  as  yet  unknown,  heretofore,  to  wit,  on,  &c.,  on 
the  coast  of  Africa,  out  of  the  jurisdiction  of  any  particular  state  of 
the  said  United  States  of  America,  on  waters  within  the  admiralty 
and  maritime  jurisdiction  of  the  said  United  States  and  within  the 
jurisdiction  of  this  court,  they  the  said  persons  to  the  jurors  aforesaid 
as  yet  unknown,  being  of  the  crew  and  ship's  company  of  a  certain 
vessel  being  a  called  the  owned  wholly  or  in  part  by  a 

citizen  or  citizens  of  the  United  States  of  America,  whose  names  are 
to  the  said  jurors  also  unknown,  did  piratically  and  feloniously  con- 
fine and  detain  negroes,  whose  names  are  to  the  said  jurors 
unknown,  in  and  on  board  of  the  said  vessel,  being  a  called  the 
with  the  intent  of  them  the  said  persons  to  the  jurors  aforesaid 
unknown,  to  make  slaves  of  the  aforesaid  negroes,  they  the 
said  negroes  not  having  been  held  to  service  by  the  laws  of 
either  of  the  states  or  territories  of  the  said  United  States;  and  that 
the  said  C.  F.  D.  was  then  and  there  piratically  and  feloniously  present, 
aiding  and  abetting  the  said  persons  to  the  jurors  aforesaid  as  yet 
unknown,  in  forcibly  confining  and  detaining  the  said  negroes 
in  and  on  board  the  said  vessel  aforesaid,  in  the  manner  and  at  the 
time  and  place  last  aforesaid,  against,  &c.,  and  against,  &.c.  {Con- 
clude as  in  book  1,  chap.  3). 

/'/////   CdU'tlt. 

{Like  the  fourth  count,  except  instead  of) :  "  was  then  and  there 


ENGAGING  IN  SLAVE  TRADE,  &C.  625 

piratically  and  feloniously  present,  aiding  and  abetting,"  &c.,  insert, 
"did  then  and  there  piratically  and  feloniously  aid  and  abet  the  said 
persons  to  the  jurors  aforesaid  as  yet  unknown,  in  forcibly  confining 
and   detaining   in   and   on    board   said   vessel   the   aforesaid 
negroes." 

Sixth  count. 

And  so  the  jurors  aforesaid  on  their  oath  aforesaid  do  say,  that  the 
said  and  the  said  persons  to  the  jurors  aforesaid  as  yet  un- 

known, at  the  time  and  place  last  aforesaid,  being  of  the  crew  and 
ship's  company  of  the  said  vessel,  being  a  called   the 

owned  wholly  or  in  part  by  a  citizen  or  citizens  of  the  United  States 
of  America,  whose  names  are  to  the  said  jurors  unknown,  did  pirati- 
cally and  feloniously  confine  and  detain  the  said  negroes, 
whose  names  are  to  the  aforesaid  jurors  unknown,  in  and  on  board 
of  the  said  vessel,  being  a  called  the  with  the  intent  of 
them  the  said  and  the  said  persons  to  the  jurors  aforesaid  as 
yet  unknown,  to  make  slaves  of  the  aforesaid  negroes,  they 
the  said  negroes  not  having  been  held  to  service  by  the  laws 
of  either  of  the  states  or  territories  of  the  said  United  States,  against, 
&c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

{For  final  count,  see  p.  17,  97  n,  123  n). 

Taking  on  board  and  receiving  from  the  coast  of  Africa,  negroes,  <5"C., 
under  act  of  '20th  April,  1818,  5.  4.(/j) 

That  B.  M.,  late  of,  &c.,  heretofore,  to  wit,  on,  &c.,  with  force  and 
arms  (in  the  harbour  of  on  the  coast  of  Africa),  on  waters  with- 

in the  adr.jiralty  and  maritime  jurisdiction  of  the  United  States,  out 
of  the  jurisdiction  of  any  particular  state  of  the  said  United  States  and 
within  the  jurisdiction  of  this  court,  he  the  said  B.  M.,  then  and  there 
being  a  citizen  of  the  said  United  States  of  America,  did  take  on 
board  and  receive  negroes,  whose  names  are  to  the  said  jurors 

unknown,  in  and  on  board  of  a  certain  vessel,  being  a  called 

the  from  (the  harbour  of  aforesaid,  on  the  coast  of  Africa 

aforesaid),  they  the  said  negroes  not  being  inhabitants  of  the 

said  United  States,  nor  held  to  service  by  the  laws  of  either  of  the 
states  or  territories  of  the  said  United  States  of  America,  against,  &c., 
and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count. 

{Same  as  first  count,  except  inserting):  "they  the  said  ne- 

groes not  being  inhabitants  of  either  of  the  states  or  territories  of  the 
said  United  States,  and  they  the  said  negroes  not  having  been 

lield  to  service  by  the  laws  of  either  of  the  said  states  or  territories  of 
the  said  United  States,"  instead  of  "  they  the  said  negroes  not 

being  inhabitants  of  the  said  United  States." 

Third  count. 

{Same  as  second  count,  inserting  instead  of) :  "  did  take  on  board 
and  receive,"  &c.,  "did  aid  and  abet  in  taking  on  board  and  receiv- 


er) United  States  v.  Mansfield,  U.  S.  Circuit,  New  York,  1845.     The  defendant  for- 
feited his  recognizance  and  was  never  tried. 
53 


626  OFFENCES  AGAINST  SOCIETY. 

ing  negroes,  whose  names  are  to  the  said  jurors  unknown,  in 

and  on  board  of  a  certain  vessel,  being  a  called  the  from 

aibresaid,  to  wit,  from  the  coast  of  Africa  aforesaid,  they  the 
said  negroes  not  being  inhabitants  of,  nor  held  to  service  by  the 

laws  of  either  of  the  states  or  territories  of  the  United  States." 

Fourth  count. 

{Same  as  third  count,  except) :  "was  then  and  there  present  aid- 
ing and  abetting  in  taking  on  board  and  receiving." 

(For  final  count,  see  p.  11,  97  n,  123  7i). 

Forcibly  hrivging  and  carrying  away  negroes  from  the  coast  of  Africa, 
for  the  purpose  of  making  slaves  of  them,  under  act  of  15th  May, 
1820,  s.  4.(q) 

That  C.  F.  D.,  late  of,  &c.,  in  the  circuit  and  district  aforesaid, 
heretofore,  to  wit,  on,  &c.,  with  force  and  arms,  at  the  on  the 

coast  of  Africa,  being  a  port  or  place  within  the  admiralty  and  mari- 
time jurisdiction  of  the  United  States  -of  America,  out  of  the  jurisdic- 
tion of  any  particular  state  of  the  said  United  States  of  America  and 
within  the  jurisdiction  of  this  court,  he  the  said  C.  F.  D.,  then  and 
there  being  one  of  the  ship's  company  of  a  certain  vessel,  being  *  a 
called  the  owned  in  whole  or  in  part  by  a  certain  per- 

son or  persons  whose  names  are  to  the  said  jurors  unknown,  then 
and  still  being  a  citizen  or  citizens  of  the  United  States  of  America, 
did  piratically  and  feloniously  receive  negroes,  whose  names 

are  to  the  said  jurors  also  unknown,  in  and  on  board  of  said  vessel, 
being  a  called  the  at  on  the  coast  of  Africa  afore- 

said, with  the  intent  of  him  the  said  to  make  slaves  of  the 

aforesaid  negroes,  they  the  said  negroes  having  been  on, 

&c.,  seized  on  a  foreign  shore,  to  wit,  at  aforesaid,  on  the  coast 

of  Africa  aforesaid,  by  sotne  person  or  persons  whose  names  are  to 
the  said  jurors   unknown,  they  the  said  negroes  not   having 

been  held  to  service  or  labour  by  the  laws  of  either  of  the  states  or 
territories  of  the  United  States,  against,  &c.,  and  against,  &c.  (Con- 
cltcde  as  in  bonk  1,  chap.  3). 

Second  count. 

(Same  as  first  count,  except):  "did  piratically  and  feloniously, 
forcibly  bring  and  carry  negroes,  whose  names  are  to  the  said 

jurors  also  unknown,  in  and  on  board  of  said  vessel,  being  a 
called   the  from   the  on  the  coast  of  Africa  aforesaid, 

with  the'intent,"  &c.,  instead  of  "did  piratically  and  feloniously  re- 
ceive." 

Third  count. 

[Same  as  first  count  doivn  to  *,  and  then  proceed) :  a  citizen  of 
the  United  Slates  of  America,  and  he  the  said  C.  F.  D.,  being  then  and 
there  one  of  the  ship's  company  of  a  certain  vessel,  being  a 
called  the  which  said  called  the  was  then  and  there 

a  foreign  vessel  engaged  in  the  slave  trade,  did  piratically  and  felo- 


(9)  United  States  ».  Driscoll,  New  York,  1845.     Tlie  defendant  was  not  tried,  having 
forfeited  his  reeogiiizaiiec. 


AGAINST  THE    POST  OFFICR   AND   REVENUE  LAWS.  627 

iiiously  receive  negroes,  Whose  names  are  to  the  said  jurors 

unknown,  in  and  on  board  of  said  foreign  vessel,  being  a  called 

the  at  the  on  the  coast  of  Africa,  with  the  intent  of  him 

the  said  to  make  slaves  of  the  aforesaid  negroes,  they  the 

said  negroes  having  been  on,  &c.,  seized  on  a  foreign  shore,  to 

wit,  at  aforesaid,  on  the  coast  of  Africa  aforesaid,  by  some  per- 

son or  persons  whose  names  are  to  the  said  jurors  also  unknown, 
they  (he  said  negroes,  not  having  been  held  to  service  or  labour 

by  the  laws  of  either  of  the  states  or  territories  of  the  United  States, 
against,  &c.,  and  against,  &.c.     {Conclude  as  in  book  1,  chap.  3). 

Fourth  count. 

{Same  as  third  count,  except):  "did  piratically  and  feloniously, 
forcibly  bring  and  carry  negroes,  whose  names  are  to  the  said 

jurors  unknown,  in  and  on  board  of  said  foreign  vessel,  being  a 
called  the  from  the  on  the  coast  of  Africa  afore- 

said, with  the  intent,"  &,c.,  instead  of^^  did  piratically  and  feloniously 
receive,"  &c. 

{For final  count,  see  p.  17,  97  n,  123  n). 


CHAPTER  XIV. 

OFFENCES  AGAINST  THE  POST  OFFICE  LAWS  AND  REVENUE  LAWS. 

Mail  robbery  by  putting  the  dj'iver's  life  in  jeopardy,  SfC,  rcith  dangerous 
weapons  and  robbing  from  his  personal  custody  certain  bank  bills, 
letters  and  packets,  to  the  jurors,  SfC,  unknown.{a) 

That  J.  T,  H,,  late  of,  &c.,  yeoman,  together  with  a  certain  L.  H. 
and  a  certain  J.  A.,  on,  &.C.,  in  the  night  of  the  same  day,  in  the  public 
liighway  at  H.  county  at  the  district  aforesaid,  in  and  upon  one  D.  B., 
then  and  there  being  the  carrier  of  the  mail  of  the  said  United  States, 
and  the  person  entrusted  therewith,  and  in  the  peace  of  God  and  of 
the  said  United  States  then  and  there  being,  with  force  and  arms  at 
the  district  aforesaid,  feloniously  did  make  an  assault  and  him  the  said 
D.  B.  in  bodily  fear  and  danger  of  his  life  in  the  highway  aforesaid, 
tlien  and  there  xlid  put  and  with  the  use  of  certain  dangerous  wea- 
pons, to  wit,  pistols  and  dirks,  which  the  said  .1.  T.  H.  then  and  there 
in  his  hands  held,  he,  the  said  J.  H.,  did  put  in  jeopardy  the  life  of 
said  D.  B.,  he  the  said  D.  B.  then  and  there  being  entrusted  with  and 
having  the  custody  of  the  said  mail  *  of  the  said  United  States,  and 

(a)  U.  S.  V.  Hare,  before  Duval  and  Eloiiston  Js.,  2  Wlicel.  C.  C.  283. 


628  OFFENCES  AGAINST  SOCIETY. 

the  mail  aforesaid  so  entrusted  and  in  the  custody  as  aforesaid  of  said 
D.  B.,  certain  bank  bills,  letters  and  packets  to  the  jurors  aforesaid 
unknown,  belonging  to  certain  persons  to  the  jurors  aforesaid  un- 
known, from  the  personal  custody  and  care  of  the  said  D.  B.,  and 
against  his  will  in  the  highway  aforesaid  at  the  district  aforesaid,  then 
and  there  feloniously  and  violently  did  rob,  steal,  take  and  carry  away, 
against,  &c.,  and  against,  &c.     [Coiichide  as  in  book  1,  chap,  3). 

Second  count.  Same  as  first  to  *,  then  proceed : 
and  tlie  said  mail  of  the  said  United  States  from  the  custody,  pos- 
session and  care  of  said  D.  B.  and  against  the  will  of  said  D.  B.,  in  the 
highway  aforesaid  at  the  district  aforesaid,  did  then  and  there  felo- 
niously and  violently  rob,  steal,  take  and  carry  away,  against,  &c., 
and  against,  &c.     {^Conclude  as  in  book  1,  chap.  3). 

Third  could. 

{Same  as  first,  omitting  the  qualification  of)',  "dangerous  wea- 
pons," {and  averring  the  robbery  to  be  of  the):  "said  mail  of  the 
Umted  States,  then  and  there  containing  sundry  letters,"  &c. 

Another  form  for  same.     First  count,  robbing  of  the  mail  and  putting  in 
jeopardy  icilh  ■pistols.fb) 

That  J.  P.,  otherwise  called  J.  M.,  late  of,  &c.,  yeoman,  and  G.  W., 
late  of,  &c.,  yeoman,  on,  &c.,  at,  &c.,and  within  the  jurisdiction  of  this 
court,  with  force  and  arms  in  and  upon  one  S.  M'C,  in  the  peace  of 
God  and  of  the  said  United  States  of  America  then  and  there  being, 
then  and  there  being  the  carrier  of  the  mail  of  the  said  United  States, 
and  then  and  there  having  the  custody  of  the  said  mail  and  then  and 
there  proceeding  with  said  mail  from  the  city  of  P.  to  the  borough  of 
R.,  feloniously  did  make  an  assault  and  him  the  said  carrier  did  then 
and  there  of  the  said  mail  feloniously  rob,  and  in  then  and  there 
effecting  the  said  robbery  did  then  and  there,  by  the  use  of  dan- 
gerous weapons,  to  wit,  pistols,' put  in  jeopardy  the  life  of  the  said 
S.  M'C,  he  the  said  S.  M'C.  then  and  there  being  as  aforesaid  the 
carrier  of  the  said  mail  of  the  United  States,  and  having  then  and 
there  the  custody  thereof,  contrary,  &c.,  and  against,  &c.  {Conclude 
as  in  book  1,  chap.  3). 

Second  count. 

That  the  said  J.  P.,  otherwise  called  J.  M.,  and  the  said  G.  W., 
afterwards,  to  wit,  on,  &c.,  at,  &.C.,  and  within  the  jurisdiction  of  this 
court,  with  force  and  arms  in  and  upon  the  said  S.  M'C.  (then  and 
there  being  a  carrier  of  the  mail  of  tiie  United  States),  and  then  and 
there  having  the  custody  of  the  said  mail,  *  and  then  and  there  pro- 
ceeding with  the  said  mail  from  the  city  of  P.  to  the  borough  of  R., 
feloniously  did  make  an  assault  and  him  the  said  S.  M'C.  in  bodily 
fear  and  danger  of  his  life  then  and  there  feloniously  did  put,  and  the 
said  mail  of  the  United  States  from  him  the  said  S.  M'C.,  then  and  there 
as  aforesaid  a  carrier  of  the  mail  of  the  United  Statcs,and  then  and  there 
having  the  custody  thereof,  then  and  there  feloniously,  violently  and 
against  his  will,  did  steal,  take  and  carry  away;  and  in  then  and  there 
effecting  the  robbery  so  as  aforesaid  described,  did  then  and  there  by 

(h)  V.  S.  r.  Wilson,  1  Bald.  78.  Tiie  dfiuiiiJaiits  were  convicted,  and  one  of  them 
executed. 


AGAINST   THE  POST   OFFICE   AND   REVENUE  LAWS.  6"29 

the  use  of  danwerous  weapons,  to  wit,  pistols,  put  in  jeopardy  the  hfe 
of  the  said  S.  iM'C,  then  and  there  being  the  carrier  of  the  mail  of  the 
United  States,  and  then  and  there  iiaving  the  custody  thereof,  contrary, 
<fec.,  and  against,  &.c.     {Conclude  as  in  book  1,  chap.  3). 

Third  count.  Same  as  Jirsl  down  to  *,  and  then  proceed: 
feloniously  did  make  an  assault,  and  the  life  of  him  the  said  S. 
M'C.  by  the  use  of  dangerous  weapons  did  then  and  there  put  in  jeo- 
pardy, and  the  said  mail  of  the  United  States  from  him  the  said  S. 
M'C.  then  and  there  feloniously,  violently  and  against  the  will  of  him 
the  s%id  S.  M'C.  did  steal,  take  and  carry  away,  contrary,  &c.,  and 
against,  &c.     {Conclude  as  iti  book  1,  chap.  3). 

Obstructing  the  mail.{c) 

That  W.  M'C,  late  of,  &c„  yeoman,  on,  &c.,  at,  &c.,  and  within 
the  jurisdiction  of  this  court,  with  force  and  arms,  knowingly  and 
wilfully  did  obstruct  and  retard  the  passage  of  the  *  mail  of  the 
United  States,  **  contrary,  &c.,  and  against,  &:c.  [Conclude  as  in 
book  1,  chap.  3). 

Second  count. 

{Same  as  Jirsf,  inserting  at  *  the  ivords)  "driver  of  the,"  {and 
at  **  the  words)  "conveying  the  same." 

Third  count. 

{Same  as  second,  inserting)  "  carrier"  in  place  of  "driver." 

Fourth  count. 

{Same  as  first,  inserting  at  *  the  words)  "carriage  carrying  the." 

Opening  a  letter  in  the  United  States  mai/.{d) 

That  heretofore,  to  wit,  on,  &c.,  at,  &,c.,  and  within  the  jurisdiction 
of  this  court,  one  G.  T.,  late  of,  &c.,  yeoman,  did  open  a  letter  directed 
to  a  certain  C.  M.,  which  had  been  in  a  post  office,  to  wit,  the  post  office 
at  P.,  and  before  it  had  been  delivered  to  the  said  person  to  whom  it 
was  so  directed,  with  a  design  to  obstruct  the  correspondence,  to  pry 
into  another's  business  and  secrets,  contrary,  &c.,  and  against,  &,c. 
{Conclude  as  in  book  1,  chap.  3). 

Second  and  third  counts,  for  embezzling,  SfC. 

Stealing  from  the  mail  of  the  United  States.     First  count,  stealing  the 
mttU.{e) 

That  A.  B.,  late  of,  &,c.,  in,  &c.,  heretofore,  to  wit,  on,  &c.,  with 
force  and  arms  in,  &c.,  and  within  the  jurisdiction  of  this  court,  did 
then  and  there  feloniously  steal  the  mail  of  the  United  States  of 

Cc)  Tlic  defendant  was  convicted  and  sentenced,  on  evidence  showing'  (hat  on  the  arri- 
val of  tiie  cars  containing  tlie  mail  at  the  depot  in  Philadelphia,  he  drove  his  cab  over  the 
rails,  and  prevented  the  progress  of  the  mail;  U.S.  r.  WCarran,  Phil.  1847.  The 
indictment  was  prepared  by  .Mr.  Pettit,  U.  S.  attorney,  to  whom  I  have  the  pleasure  of 
acknowledging  my  obligations  both  for  this  and  for  other  accurate  and  valuable  prece- 
dents. 

{d)  U.  S.  c.  Tilghman,  Phil.  18.37.  Drawn  by  Mr.  J.  M.  Read,  then  district  attorney. 
The  defendant  was  acquitted  on  this  count. 

(e)  U.  S.  V.  Hoft'.     Tiic  defendant  was  convicted  and  sentenced. 

53* 


630  OFFENCES  AGAINST  SOCIETY. 

America,  against,  &c.,  and  against,  &c.  [Conclude  as  in  book  \, 
chap.  3). 

Second  count.     Stealing  from  the  mail  certain  letters  and  packets. 

That  A.  B.,  late  of,  &c.,  heretofore,  to  wit,  on,  &c.,  witli  force  and 
arms  at,  &c.,  and  within  the  jurisdiction  of  this  court,  did  then  and 
there  feloniously  steal  and  take  from  and  out  of  a  mail  of  the  United 
States  of  America,  certain  letters(/)  and  packets,  against,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Third  count.  Taking  letters  from  the  mail  and  opening  and  embez- 
zling them.  * 

That  A.  B.,  late  of,  &c.,  heretofore,  to  wit,  on,  &c.,  with  force  and 
arms  at,  &c.,  in  the  Southern  District  of  New  York  in  the  Second 
Circuit,  and  witliin  the  jurisdiction  of  this  court,  did  then  and  there 
feloniously  take  the  mail  of  the  United  States  of  America,  and  cer- 
tain letters  and  packets  therefrom,  and  did  open,  embezzle  and 
destroy  such  mail,  letters  and  packets,  the  same  containing  articles  of 
value,  against,  &c.,  and  against,  &c.    {Conclude  as  in  bookl^chap.S). 

Fourth  count.  Stealing  a  letter,  specifying  its  contents,  and  by  whom 
sent. 

That  A.  B.,  late  of,  &c.,  on,  &c,,  at,  &c.,  and  within  the  jurisdic- 
tion of  this  court,  a  certain  letter,  then  lately  before  put  into  a  mail 
of  the  United  States  of  America,  at  the  post  office  at,  &c.,  in,  &c., 
by  C.  D.,  and  intended  to  be  conveyed  by  mail  from  said  to 

the  post  office  at,  &c.,ibr  and  to  be  delivered  to  E.  F.,at,  &c.,  which 
said  letter  did  then  and  there  contain  an  article  of  value,  to  wit,  [here 
specif;^  the  article,  and  value  of  the  same),  the  said  letter  then  and 
tliere,  to  wit,  at,  &c.,  and  within  the  jurisdiction  of  this  court,  he  the 
said  A.  B.,  then  and  there  with  force  and  arms  feloniously  did  steal 
and  take  from  and  out  of  a  mail  of  the  said  United  States  of  America, 
against,  &.C.,  and  against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Fifth  count.     Same  as  fourth,  without  averment  of  contents. 

That  A.  B.,  late  of,  &c.,  on,  &c.,  with  force  and  arms  at,  &c.,  and 
within  the  jurisdiction  of  this  court,  did  then  and  there  feloniously 
take  from  and  out  of  a  mail  of  the  United  States,  a  certain  letter, 
then  lately  before,  to  wit,  on,  &c.,  put  into  a  mail  of  the  United 
States  of  America,  at,  &c.,  and  within  the  jurisdiction  of  this  court, 
which  said  letter  was  directed  to  E.  F.,  at,  &c.,  against,  &c.,  and 
against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Sixth  count. 

That  A.  B.,  late  of,  &c,,  on,  &c.,  with  force  and  arms  at,  &c.,  and 
within  the  jurisdiction  of  this  court,  did  then  and  there  feloniously 
take  a  certain  letter  directed  to  E.  F.,  at,  &c.,  said  letter  containing 
an  article  of  value,  from  and  out  of  a  mail  of  the  United  States  of 
America,  and  did  open  and  embezzle  said  letter,  against,  &c.,  and 
against,  &c.     [Conclude  as  in  book  1,  chap.  3). 

Seventh  count. 

That  A.  B.,  late  of,  &c.,  on,  &c.,  with  force  and  arms  at,  &c.,  and 
within  the  jurisdiction  of  this  court,  did  then  and  there  feloniously 

(  f )  This  is  full  cnoufrli,  no  pnrf iriilar  description  of  the  letter  I)ein<r  necessjiry  ;  tlionglj 
if  llie  letter  he  particularly  descrihed,  it  iijust  be  proved  us  l.iid;  [J.  S.  v.  Laucaster, 
2  M'Leuii  131. 


AGAINST    THE  POST    OFFICE    AND    REVENUE    LAWS.  631 

take  a  certain  letter  directed  to  E.  F.,  at,  &:c.,  said  letter  containing 
an  article  of  value,  to  wit,  a  certain  lor  the  payment  of 

and  of  the  value  of  from  aild  out  of  the  mail  of  the  United 

States  of  America,  and  did  then  and  there  open  and  embezzle  said 
letter,  containing  said  article  of  value,  against,  &c.,  and  against,  &c. 
{Conclude  us  in  book  1,  chap.  3). 

[For final  count,  see  p.  17,  27  n,  123  n). 

Another  form  for  same,  vu't/t  counts  for  opening,  ^c.     First  count,  steal- 
i7ig  a  letter  and  packet.{g) 

That  heretofore,  to  wit,  on,  &c.,  at,  &c.,  and  within  the  jurisdiction 
of  this  court,  W.  K.  of,  &c.,  yeoman  *  did  then  and  there  steal  and 
take  from  and  out  of  the  mail  of  the  United  States  a  letter  and  packet, 
contrary,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3), 

Second  count.     Same,  stating  route  of  mail. 

{Same  as  first  count  to  "^  ,and  the^i  proceed):  "did  then  and  there 
steal  and  take  from  and  out  of  a  mail,  to  wit,  the  mail  of  the  United 
States,  then  and  there  proceeding  from  H.  in  the  State  of  Pennsylva- 
nia, to  wit,  at,  &c.,  towards  D.  in  the  State  of  P.,  to  wit,  at,  &c.,  afore- 
said, a  letter  and  packet,  contrary,  &c.,  and  against,"  &c.  {Conclude 
as  in  book  1,  chap.  3). 

Third  count.     Stating  direction  of  letter. 

{Same  as  first  count  to  *,  and  then  proceed) :  "  did  then  and  there 
steal  and  take  from  and  out  of  the  mail  of  the  United  States  a  letter 
addressed  to  contrary,  &c.,  and  against,"  &c.     (Conclude  as  in 

book  1,  chap.  3). 

Fourth  count.     Same,  stating  both  route  and  direction  of  letter. 

{Same  as  first  down  to  *,  and  then  proceed) :  "  did  then  and  there 
steal  and  take  from  and  out  of  a  mail,  to  wit,  the  mail  of  the  United 
States,  then  and  there  proceeding  from  to  wit,  at,  &c.,  towards 

to  wit,  at,  &c.,  a  certain  other  letter,  to  v/it,  a  letter  from  J.  L., 
addressed  to  contrary,  &c.,  and  against,"  &,c.     {Conclude  as  in 

book  1,  chap.  3). 

Fifth  count.     Embezzling  and  destroying  letter. 

{Same  as  first  count  to  *,  and  then  proceed) :  "did  then  and  there 
embezzle  and  destroy  a  letter  and  packet,  which  had  been  in  a  post 
ottice,  before  it  was  delivered  to  the  person  and  persons  to  whom  it 
was  directed,  contrary,  &:c.,  and  against,"  &:c.  {Conclude  as  in  book 
1,  chap.  3). 

Sixth,  seventh  and  eighth  counts.  For  embezzling,  ^-c,  varying  the  state- 
ment of  route  and  direction  as  in  second,  third  and  fourth  counts. 

Ninth  count.     Against  person  employed  in  post  office  for  opening,  ^-c. 

That  afterwards,  to  wit,  on,  &,c.,  at,  &c.,  and  within,  &c.,  the  said 
W.  K.  being  then  and  there  a  person  employed  in  a  department  of 
the  post  office  establishment,  did  then  and  there  unlawfully  open  a 
letter  with  which  he  was  then  and  there  entrusted  and  which  had 
come  to  his  possession,  and  which  was  intended  to  be  conveyed  by 


(.S)  U.  S.  r.  Kronior,  Phil.  1S3().     This  indictment  was  prepared  by  .Air.  Gilpin.     The 
detliiUaiit  was  convicted  and  sentenced. 


632  OFFENCES  A(5A1\ST  SOCIETY. 

post,  contrary,  &.C.,  and  against,  &c.  {Conclude  as  in  book  1, 
diap.  3). 

Tenth  count.     Jlgainst  carrier  for  emhezzlivg   and  destroying  letter. 

That  afterwards,  to  wit,  on,  &c.,  at,  &c.,  and  within,  &c.,  the  said 
W.  K.  being  then  and  there  a  person  employed  in  a  department  of 
the  post  office  establishment,  to  wit,  as  a  carrier(z)  of  the  mail  of  the 
United  States  from  the  post  office  at  H.  to  tiie  post  office  at  D.,  to  wit, 
at  the  district  aforesaid  did  embezzle  and  destroy  a  letter  with  which 
he  was  then  and  there  entrnsted  and  which  had  then  and  there  come 
to  his  possession,  and  was  then  and  there  intended  to  be  conveyed  by 
post,  then  and  there  containing  a  bank  note,  to  wit,  a  bank  note  of 
the  Bank  of  Pennsylvania  for  one  hnndred  dollars,  marked  with  the 
letter  S.  and  nnmbered  No.  162  ;  contrary,  &c.,and  against,  &.c.  {Con- 
clude as  in  book  1,  chap.  3). 

Secreting  and  emheizlivg  from  the  United  States  mail  a  letter  containing 
money.,  the  -party  being  connected  ivith  a  post  office,  and  the  letter  being 
directed  to  certain  persons  under  the  name  of  a Jirm.{j) 

That  J.  W.,  late  of,  &c.,  on,  etc.,  was  a  person  employed  in  one  of 
the  departments  of  the  post  office  establishment  of  the  said  United 
States,  to  wit,  a  clerk,  {or  otherwise),  in  the  post  office  at(/i') 
in  the  district  aforesaid,  and  that  on,  &c.,  in  the  said  post  office 
at,  &c.,  a  certain  letter,(/)  then  lately  before  sent  by  one  C.  D.  of, 
&c.,  and  intended  to  be  conveyed  by  post  to  certain  persons  using 
trade  and  commerce  in  the  city  of  in  said  Southern  District  of 

New  York,  under  the  name,  style  and  firm  of  and  which  said 

letter  contained  {state  the  contents  of  said  letter  and  the  valiie),{m) 
came  into  the  possession  of  him  the  said  J.  W.,  so  then  and  there 
being  employed  as  a  clerk  in  the  said  post  office  at  aforesaid, 

and  that  he  the  said  J.  W.  being  so  employed  in  the  said  post  office 
and  the  said  letter  so  then  and  there  containing  the  said  having 

so  as  aforesaid  come  into  the  possession  of  him  the  said  J.  W.,  he  Hie 
said  J.  VV.  did  then  and  there  with  force  and  arms  on,  &c.,  at,  &c., 
feloniously  secrete  the  said  letter  so  then  and  there  containing  the 
said  contrary,  &c.,  and  against,  &,c.     {Conclude  as  in  book  1, 

chap.  3). 

Second  count. 

{Like  first  count,  substituting) :  "  feloniously  embezzle  the  said 
letter,"  &.c.,for  "felonionsly  secrete  the  said  letter." 

Third  count, 

{Like  first  count,  substituting):  "feloniously  secrete  and  em- 
bezzle the  said  letter," ybr  "  feloniously  secrete  the  said  letter." 

(t)  A  carrier  is  within  the  act;  IT.  S.  v.  Bclew,  2  Brock.  2S0. 

( ;')  U.  S.  V.  Wisner,  New  York,  1844.  1'hc  defendant  was  convicted.  See  for  a  simi- 
lar form  ante,  p.  Iii9. 

(A:)  The  "  employment"  mnst  be  distinctly  alleged ;  U.  S.  v.  Nott,  1  M'Lean  499. 

(/)  Though  it  niiiy  be  prudent  to  dcscriltc  the  letter  with  the  particularity  that  follows, 
yet  it. would  seem  to  be  enough  to  aver  that  it  came  into  the  hands  of  the  postmaster, 
without  staling  where  it  was  mailed  or  by  what  route  it  was  conveyed;  U.  S.  v.  Lancas- 
tcr,  2  M'Lean  431  ;  U.  S.  v.  Martin,  ih.  2r)6. 

(m)  rscitlier  the  letter  nor  the  notes  enclos(-d  in  it  need  be  specifieally  described,  thougli 
if  they  arc,  a  variance  will  be  fatal ;  U.  S.  v.  Lancaster,  2  M'Lean  431. 


AGAINST  THE  POST  OFFICE  AND  REVENUE   LAWS.  633 

Fourth  count. 

{Like  first  count,  except  instead  of) :  "he  the  said  J.  W.  did  then 
and  there  with  force  and  arms,  on,  &c.,  at,  &c.,  feloniously  secrete 
the  said  letter  so  then  and  there  containing  the  said  ,"  insert, 

"  he  the  said  the  said  of  the  value  aforesaid,  with  force 

and  arms  feloniously  did  steal  out  of  the  aforesaid  letter." 

Fift/i  court t. 

(Like  fourth  count,  except  instead  of) :  "  feloniously  did  steal," 
&c.,  insert,  "  feloniously  did  take." 

Sixth  count. 

{Like  fifth  count,  except  instead  of ) :  "'feloniously  did  take,"  in- 
sert, "feloniously  did  steal  and  take." 

Seventh  count  Fur  embezzling,  6fC.,  averring  speciaVij  the  character 
and  route  of  letter,  ^'C. 

That  on,  &c.,  one  X.  B.  of,  &c.,  deposited  in  the  j^ost  office  of  the 
said  United  States  at  aforesaid,  a  certain  letter  addressed  and 

directed  to  C.  D.,  at,  &.c.,  by  the  name  and  description  of,  {repeat  the 
name  of  the  firm  if  such  is  the  case),  being  the  name,  style  and 
firm  under  which  the  said  on,  &c.,  used  trade  and  commerce 

and  transacted  commercial  business  in  the  said  city  of  which 

said  letter  then  and  there  containing,  [state  the  contents),  which  said 
letter  so  as  aforesaid  containing  the  said  was  intended  to  be 

conveyed  by  post  to  the  city  of  in  the  district  aforesaid,  to  the 

said  C.  D.  so  as  aforesaid  using  trade  and  commerce  under  the  name, 
style  and  firm  of  G.  D.  at  the  said  city  of 

And  the  jurors  aforesaid  on  their  oath  aforesaid,  do  further  present, 
that  afterwards,  to  wit,  on,  &c.,  the  said  letter  so  containing  the  said 
and  so  intended  to  be  conveyed  by  post,  came  into  the  posses- 
sion of  J.  W.,  of,  &c.,  the  said  J.  W.  on,  &c.,  at,  &c.,  being  a  person 
employed  in  one  of  the  departments  of  the  post  office  establishment 
of  the  said  United  States  of  America,  to  wit,  being  a  person  em- 
ployed as  a  clerk  in  the  post  office  of  the  said  United  States  at,  &e., 
and  that  he  the  said  J.  W.  being  then  and  there  so  employed  as  afore- 
said, and  the  said  letter  containing  the  said  so  intended  to  be 
conveyed  by  post,  having  then  and  there  come  into  the  possession  of 
him  the  said  J.  W.,  he  the  said  J.  W.  did  then  and  there  with  force 
and  arms  feloniously  embezzle  the  said  letter  so  containing  the  said 
against,  &c.,  and  against,  &c.    {Conclude  as  in  book  1,  chap.  3). 

Eighth  count. 

{Like  seventh  count,  except  instead  of):  "with  force  and  arms 
feloniously  embezzle  the  said  letter  so  containing  the  said  ," 

insert,  "  with  force  and   arms  feloniously  steal  and   take  the  said 
of  the  value  aforesaid,  out  of  the  aforesaid  letter." 

JVintk  count. 

{Like  eighth  count,  except  instead  of) :  "  with  force  and  arms 
feloniously  steal  and  take  the  said  of  the  value  aforesaid,  out 

of  the  aforesaid  letter,"  insert,  "  with  force  and  arms  feloniously 
secrete  the  said  letter  so  containing  the  said  of  the  value  afore- 

said." 


634  OFFENCES  AGAINST  SOCIETY. 

Procuring  and  advisivg  a  person  entrusted  icith  the  7nail  to  secrete 
it.{n) 

That  J.  B.  M.,  &c.,  did  at,  &c.,  on,  &c.,  procure,  advise  and  assist 
J.  J.  S.  to  secrete,  embezzle  and  destroy  a  mail  of  letters,  with  which 
the  said  J.  J.  S.  was  entrusted,  and  which  had  come  to  his  possession 
and  was  intended  to  be  conveyed  by  post  from  in  the  district  afore- 

said, to  also  in  said  district,  containing  bank  notes,  the  said  J.  J.  S. 

being  at  the  time  of  such  procuring,  advising  and  assisting,  then  and 
there  a  person  employed  in  one  of  the  departments  of  the  post  office 
establishment,  to  wit,  a  carrier  of  the  mail  of  the  United  States  from 
aforesaid,  to  aforesaid,  contrary,  &c.     {Conclude  as  in 

book  1,  chap.  3). 

Second  count.  Procuring  and  advising  a  jyerson  entrusted  ivlth  the 
mail  to  secrete  a  particular  letter. 

That  the  said  J.  B.  M.  did  procure,  advise  and  assist  J.  J.  S.  to 
secrete,  embezzle  and  destroy  a  letter  addressed  by  J.  S.  to  J.  B.,  with 
which  the  said  J.  J.  S.  was  entrusted,  and  which  came  to  his  posses- 
sion and  was  intended  to  be  conveyed  by  post  from  in  the  dis- 
trict aforesaid,  to  aforesaid,  containing  sundry  bank  notes, 
amounting  in  the  whole  to  sixty  dollars,  of  a  denomination  to  the 
jurors  aforesaid  unknown,  and  of  the  issue  of  a  bank  to  the  said 
jurors  also  unknown,  the  said  J.  J.  S.  being  at  the  time  of  such  pro- 
ciH'ing,  advising  and  assisting,  then  and  there  a  person  employed  in 
one  of  the  departments  of  the  post  office  establishment,  to  wit,  a  car- 
rier of  the  mail  of  the  United  States  from  aforesaid,  to 
aforesaid,  contrary,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Smuggling  under  \9  s.  of  act  of  August  30,  1842 — {tariff  act) — Peters' 
Statutes  at  Large  565. (o) 

That  B.  L.,  late  of,  &c.,  heretofore,  to  wit,  on,  &c,,  at,  &c.,  and 
within,  &c.,  {or  otherwise),  knowingly  and  wilfully,  with  intent  to 
defraud  the  revenue  of  the  United  States  of  America,  did  (smuggle 
and)  clatidestinely  introduce  into  the  United  States  of  America,  to 
wit,  into  the  port  and  district  of,  &c.,  in  the  circuit  and  district  afore- 
said, and  within  the  jurisdiction  of  this  court,  t  certain  goods,  wares 
and  merchandise,  ^  subject  to  duty  by  law,  and  which  should  have 
been  invoiced,  without  paying  or  accounting  for  the  duty  due  and 
payable  on  said  goods,  wares  and  merchandise,  against,  &c.,  and 
against,  &.c.     {Conclude  as  i)i  book  1,  chap.  3). 

Second  count. 

{Same  as  first  count  to  '*,  and  then  proceed) :  to  wit,  {specify  the 
articles,  marks  and  quantities  particularly),  of  the  value  of 
dollars,  all  of  which  said  goods,  wares  and  merchandise  were  subject 
to  duty  by  law,  and  wliicli  should  have  been  invoiced,  without  pay- 
ing or  accounting  for  the  duly  to  which  said  goods,  wares  and  mer- 


(n)  United  i=?t;if,cs  v.  Mills,  7  Peters  138. 

(o)  United  Slates  v.  Loewi,  New  York.     The  dcfcndunl  was  acriuittcd,  but  no  (lucstion 
Was  raised  on  tlii.s  indietuient. 


AGAIXST  THE  POST  OFFICE  AND  REVENUE  LAWS.  635 

chandise  were  so  subject  as  aforesaid,  against,  &c.,  and  against,  &lc. 
{Conclude  as  in  book  1,  chap.  3). 

Third  count. 

{Like  .second  count,  except  instead  of) :  "  all  of  which  said  goods, 
wares  and  merchandise  were  subject,"  &c.,  insert,  "which  said 
goods,  wares  and  merchandise  so  smuggled  as  aforesaid,  were  then 
and  there  by  the  laws  of  the  United  States  of  America  subject  to 
duty,  and  should  have  been  invoiced,  he  the  said  B.  L.,  at  the  time 
he  so  smuggled  the  said  goods,  wares  and  merchandise  as  aforesaid, 
not  having  paid  or  accounted  for  the  duty  to  which  the  said  goods, 
wares  and  merchandise  were  subject  as  aforesaid,"  against,  &c.,  and 
against,  &c.     {Conclude  as  in  hook  1,  chap.  3). 

Fourtli  count.     Like,  the  first  count,  omitting  the  words  in  brackets. 

Fifth  count. 

That  B.  L.,  late  of,  &c.,  heretofore,  to  wit,  on,  &c.,  at,  &c.,  know- 
ingly and  wilfully  with  intent  to  defraud  the  revenue  of  the  United 
States  of  America,  did  smuggle  and  clandestinely  introduce  into  the 
United  States,  to  wit,  into  the  City  of  New  York  in  the  Southern 
District  of  New  York  and  within  the  jurisdiction  of  this  court,  certain 
goods,  wares  and  merchandise,  to  wit,  {as  is  specified  in  preceding 
counts),  of  the  value  of  dollars,  which  said  goods,  wares  and 

merchandise  so  smuggled  and  clandestinely  introduced  into  the  United 
States  of  America  as  aforesaid,  were  subject  to  duty  by  law  and 
should  have  been  invoiced,  he  the  said  B.  L.  at  the  time  he  so  smug- 
gled and  clandestinely  introduced  the  said  goods,  wares  and  merchan- 
dise as  aforesaid,  well  knowing  that  the  duty  due  and  payable  upon 
said  goods,  wares  and  merchandise  had  not  been  paid  or  accounted 
for,  and  he  the  said  B.  L.,  at  the  time  he  so  sniuggled  and  clandes- 
tinely introduced  the  said  goods,  wares  and  merchandise  as  aforesaid, 
well  knowing  that  the  said  goods,  wares  and  merchandise  had  not 
been  invoiced,  against,  &c.,  and  against,  &c.  {Conclude  as  in  book 
1,  chap.  3). 

Sixth  count. 

{Same  as  first  count  to  t,  and  then  proceed) :  in  a  certain  vessel, 
being  a  called  the  certain  goods,  wares  and  merchandise, 

to  wit,  {here  specify  articles,  S^-c,  as  in  second  count),  of  the  value  of 
which  said  goods,  wares  and  merchandise  so  smuggled  and 
clandestinely  introduced  into  the  United  States  of  America  as  afore- 
said, were  unladen  from  said  called  the  without  any  per- 
mit from  the  collector  and  naval  officer  of  the  port  and  district  of  the 
City  of  New  York  for  such  unlading,  he  the  said  B.  L.,  at  the  time 
he  so  smuggled  and  clandestinely  introduced  said  goods,  wares  and 
merchandise  as  aforesaid,  and  at  the  time  said  goods,  wares  and 
merchandise  were  unladen  without  a  permit  as  aforesaid,  not  having 
paid  or  accounted  for  the  duty  to  which  said  goods,  wares  and  mer- 
chandise were  subject  as  aforesaid,  and  the  duty  to  which  said  goods, 
wares  and  merchandise  were  subject  as  aforesaid,  not  being  paid  or 
accounted  for  by  any  person  or  persons  whatsoever,  against,  &c.,  and 
against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

{For  final  count,  see  p.  17,  97  n,  1^3  7i). 


636 


OFFENCES  AGAINST  SOCTETY. 


CHAPTER  XV. 

TREASON. 

Levying  war  against  the  United  States,  with  overt  acts,  the  first  charging 
levying  war  generally,  the  second,  resisting  the  execution  of  a  particu- 
lar law  by  preventing  the  marshal  from  serving  process,  and  the  third, 
resisting  the  same  by  rescuing  prisoners  taken  by  the  marshaL{a) 

That  J.  F.,((5>)  late  of  the  County  of  Bucks  in  the  State  and  District 
of  Pennsylvania,  yeoman,  &.C.,  owing  allegiance(c)  to  the  United  States 
of  America,  wickedly  devising  and  intending  the  peace  and  tranquillity 
of  the  said  United  States  to  disturb  and  to  prevent  the  execution  of 
the  laws  thereof  within  the  same,  to  wit,  a  law  of  the  said  United 
States,  entitled  an  act,  &c.,  and  also  a  law  of  the  said  United  States,  en- 
titled an  act,  &c.,  on,  &c.,  in  the  state  and  district  aforesaid, (^)  and 
within. the  jurisdiction  of  this  court,  wickedly  and  traitorously(<^)  did 
(/)  intend  to  levy  war(^)  against  the  said  United  States  within  the 
same,  and  to  fulfil  and  bring  to  effect  the  said  traitorous  intention  of  him 
the  said  J,  F.,  afterwards,  that  is  to  say,  on,  &c.,(^)  in  the  said  state,  dis- 
trict and  county  aforesaid,  and  within  the  jurisdiction  of  this  court,(A) 

(a)  Tlic  indictment  against  John  Fries,  on  wliich  lie  was  originally  tried  and  convicted 
before  Judge  Iredell  and  Judge  Peters,  in  17179,  contained  but  one  overt  act,  viz.  the  fir.st 
one  in  the  present  form  ;  see  Davis'  Prec.  256.  A  new  trial  was  granted,  and  before  the 
second  venire  issued,  Mr.  Rawle,  then  district  attorney,  moved  to  quash  the  first  indictment, 
which  being  done,  the  one  in  the  text  was  substituted. 

(t)  Under  the  constitutional  limitation  it  has  been  doubted  whether  in  the  United  States 
the  common  law  piinciple  that  all  are  principals  in  treason  is  applicable;  U.  S.  v.  Burr, 
4.  Cranch  472,  501 ;  but  it  appears  that  the  common  law  is  unaltered  as  regards  the  indi- 
vidual states;  Davis'  Va.  Ciim.  Law  .38. 

(c)  "  If  any  person  or  persons,  owing  allegiance  to  the  United  States  of  America,  shall 
levy  war  against  them,"  &.C.,  "he  shall,"  &c.;  act  of  April  30th,  1790,  s.  1.  Under  this 
section  the  averment  in  the  text  is  essential. 

(<Z)  Tliougli  the  venire  must  be  put  iu  a  county  where  an  overt  act  can  be  proved,  yet 
the  proof  of  one  overt  act  will  entitle  the  prosecution  to  introduce  additional  overt  acts  of 
the  same  species  in  other  counties;  2  Chit.  C.  L.  63 ;  1  East  P.  C.  125;  4  East  R.  171  ; 
Fost.  9. 

(e)  Tliis  word  is  essential,  being  the  distinguishing  qualification  of  the  offence  ;  2  Ld. 
Raym.  870  ;  Comb.  259  ;   1  East  P.  C.  1 15. 

(/)  The  usual  form  is  "  did  com|)ass,  imagine  and  intend,"  2  Chit.  C.  L.  68 ;  see  form  on 
p.  639  ;  though  "  intend"  is  enough. 

(ff)  See  post,  n.  (_;),  also  p.  639. 

Ifr)  Tlie  same  Ia.\ity  is  allowed  in  pleading  time  to  an  overt  act,  as  in  pleading  time  in 
other  cases;  see  ante,  p.  8;  though  of  course  overt  nets  should  be  laid  as  committed  suh- 
sequenlly  to  the  intending  of  the  treason.  Formerly  the  several  overt  acts  were  laid  at 
distinct  times,  but  this,  it  seems,  is  urmeccssary  ;  1  East  P.  C.  125  ;  Fost.  8,  9, 194  ;  1  Hale 
122;  2  Chit.  C.  L.  66. 

(/<)  Any  number  of  overt  acts  may  be  introduced,  and  cither  of  them,  like  the  several 
assi<rnmrMits  in  perjurv  or  false  pretences,  will  be  enough  by  itself  to  support  a  conviction; 
1  East  P.  C.  123 ;  2  Chit.  C.  P.  66. 

One  species  of  treason  may  be  laid  and  proved  as  an  overt  act  of  another;  1  East  P.  C 
62,  117  ;  and  therefore  it  i.s  usual  to  insert  in  tlie  infiictment  one  count  for  "  levying  war," 
showing  the  overt  acts,  and  then  to  add  a  second  "  lor  adhering  to  the  ent^mies  of  the  Unit- 


TREASoy.  637 

with  a  great  multitude  of  persons  whose  names  are  to  the  said  grand 
inquest  unknown,  to  a  great  number,  to  wit,  the  number  of  one  hun- 
dred persons  and  upwards,  armed  and  arrayed  in  a  warlike  maimer, 
that  is  to  say,  with  guns,  swords  and  other  warhke  weapons,  as  well 
offensive  as  defensive,  being  then  and  there  unlawfully  and  traitor- 
ously assembled,  did  traitorously  assemble  and  combine  against  the 
said  United  States,  and  then  and  there  with  force  and  arms  wickedly 
and  traitorously,  and  with  the  wicked  and  traitorous  intention  to  op- 
pose and  prevent  by  means  of  intimidation  and  violence  the  execution 
of  the  said  laws  of  the  said  United  States,  within  the  same,  did  array 
and  dispose  themselves  in  a  warlike  and  hostile  manner  against  the 
said  United  States,(i)  and  then  and  there  with  force,  in  pursuance  of 
such  their  traitorous  intention,  he  the  said  J.  F.  with  the  said  persons 
so  as  aforesaid  traitorously  assembled,  armed  and  arrayed  in  manner 
aforesaid,  wickedly  and  traitorously  did  levy  war(j)  against  the  said 
United  States. 

(And(A?)  further  to  fulfil  and  bring  to  effect  the  said  traitorous  inten- 
tion of  him  the  said  J.  F.,  and  in  pursuance  and  in  execution  of  the 
said  wicked  intention  and  traitorous  combination  to  oppose,  resist  and 
prevent  the  said  laws  of  the  said  United  States  from  being  carried  in- 
to execution  in  the  state  and  district  aforesaid,  he  the  said  J.  F.,  after- 
wards, to  wit,  on,  &c.,  in  the  state,  district  and  county  aforesaid,  and 
within  the  jurisdiction  of  this  court,  with  the  said  persons,  whose 
names  to  the  grand  inquest  aforesaid  are  unknown,  did  wickedly  and 
traitorously  assemble  against  the  United  States  with  the  avowed  in- 
tention by  force  of  arms  and  intimidation,  to  prevent  the  execution  of 
the  said  laws  of  the  said  United  Slates  within  the  same,  and  in  pur- 
suance and  execution  of  such  their  wicked  and  traitorous  combination 
and  intention,  he  the  said  J.  F.,  then  and  there  with  force  and  arms, 
with  the  said  persons  to  a  great  number,  to  wit,  the  number  of  one 
hundred  persons  and  upwards,  armed  and  arrayed  in  a  warlike  man- 
ner, that  is  to  say,  with  guns,  swords  and  other  warlike  weapons 
as  well  offensive  as  detensive,  being  then  and  there  unlawfully  and 
traitorously  assembled),  did  wickedly  and  traitorously  resist  and  op- 
ed States,"  and  repeating  the  same  overt  acts;  2  Chit.  C.  L.  64;  see  i6.  for  precedents,  73 
and  74.  But  it  seems  that  no  overt  can  be  given  in  evidence  under  any  breach  of  treason, 
unless  it  be  expressly  laid  as  an  overt  act  of  such  treason,  although  it  be  laid  as  an  overt 
act  of  some  other  treason  in  the  same  indictment;  2  East  P.  C.  117, 

Two  witnesses  to  an  overt  act  are  not  absolutely  necessary  to  authorize  the  grand  jury  to 
find  a  bill;  1  Burr's  trial  196;  though  the  contrary  opinion  was  expressed  on  Fries'  trial; 
ib.  p.  14. 

(t)  This  manner  of  charging  the  hostile  assemblage  is  approved  in  East  P.  C.  58,  116; 
2  East  R.  11  ;  1  Hale  ed.  by  Stokes  and  Ing.  15U;  2  Chit.  C.  L.  64. 

(j)  To  say  nakedly  that  the  defendant  "levied  war,"  is  not  enough  in  England;  1  East 
P.  C.  116-17;  VVh.  C.  L.  582;  Carlisle's  case,  1  Dall.  35;  nor  under  the  constitution  and 
act  of  congress  is  it  probable  the  law  would  be  considered  as  different.  The  practice,  as  will 
be  seen,  has  always  been  to  introduce  overt  acts,  or  at  all  events  to  introduce  a  specifica- 
tion of  what  the  overt  acts  consisted  in.  Still,  as  levying  war  is  an  overt  act  by  itself,  no 
other  overt  act  need  be  alleged,  where  it  is  cliarged  that  what  was  done  by  the  defendant 
was  done  in  a  warlike  maimer;  2  Chit.  C.  L.  65. 

(k)  It  is  sufficient,  in  stating  several  overt  acts,  to  couple  them  together  by  an  "  and  " 
without  repeating  "and  the  jury  further  present,"  &,c.,  or  the  like,  but  that  form  is  the 
pr'>pcr  one  in  laving  distinct  species  of  treason;  1  East  P.  C.  110;  sec  Holt  G86-7  ;  4 
Harg.  St.  Tr.  702". 

51 


G38  OFFENCES  AGAINST  SOCIETY. 

pose  the  marshal  of  the  said  United  States  in  and  for  the  said  Penn- 
sylvania district,  iu  the  execution  of  the  duty  of  his  office  of  marshal 
aforesaid,  and  then  and  there  with  force  and  arras  with  the  said  great 
multitude  of  persons,  so  as  aforesaid  unlawfully  and  traitorously  as- 
sembled and  armed  and  arrayed  in  .manner  aforesaid,  he  the  said  J. 
F.  wickedly  and  traitorously  did  oppose  and  resist  and  prevent  the 
said  marshal  of  the  said  United  States  from  executing  the  lawful  pro- 
cess to  him  directed  and  delivered  against  sundry  persons  inhabitants 
of  the  county  aforesaid  and  district  aforesaid,  and  charged  upon  oath 
before  the  judge  of  the  District  Court  of  the  said  United  States  for  the 
said  district,  with  having  entered  into  a  conspiracy  to  prevent  the  ex- 
ecution of  the  said  law  of  the  United  States,  entitled  an  act,  &c., 
which  process  duly  issued  by  the  said  judge  of  the  said  District  Court 
of  the  district  aforesaid,  the  said  marshal  of  the  said  United  States 
then  and  there  had  in  his  possession  and  was  then  and  there  proceed- 
ing to  execute,  as  by  law  he  was  bound  to  do;  and  so  the  said  grand 
inquest,  upon  their  respective  oaths  and  affirmations  aforesaid  do  say, 
that  the  said  J.  F.  in  manner  aforesaid  as  much  as  in  him  lay,  wicked- 
ly and  traitorously  did  prevent,  by  means  of  force  and  intimidation, 
the  execution  of  the  said  law  of  the  said  United  States,  in  the  said 
state  and  district  of  Pennsylvania. 

{Repeat  passage  as  in  brackets  and  then  proceed):  did  traitorously 
with  force  and  arms  and  against  the  will  of  the  said  marshal  of  the 
said  United  States  and  for  the  district  aforesaid,  liberate  and  take  out 
of  his  custody  sundry  persons  by  him  before  that  time  arrested,  and 
in  his  lawful  custody  then  and  there  being  by  virtue  of  lawful  process 
against  them  issued  by  the  said  judge  of  the  District  Court  of  the  said 
United  States  for  the  said  Pennsylvania  district,  on  a  charge  upon  oath 
of  a  cons{)iracy  to  prevent  the  execution  of  the  said  law  of  the  said 
United  States,  entitled  an  act,  &-C. ;  and  so  the  grand  inquest  aforesaid 
upon  their  respective  oaths  and  affirmations  aforesaid  do  say,  that  the 
said  J.  F.  as  much  as  in  him  lay,  did  then  and  there  in  pursuance  and 
in  execution  of  the  said  wicked  and  traitorous  combination  and  inten- 
tion, wickedly  and  traitorously  by  means  of  force  and  intimidation 
prevent  the  execution  of  the  said  law  of  the  said  United  States,  en- 
titled an  act,  &c.,  and  the  said  law  of  the  said  United  States  entitled 
an  act,  &c.,  in  the  state  and  district  aforesaid,  contrary  to  the  duty  of 
his  said  allegiance, (/)  against,  &c.,  and  also  against,  &,c.  {Conclude 
as  in  book  1,  chap.  3). 

{For  final  count,  see  p.  17,  97  n,  123  n). 

Another  form  for  same.{n) 

That  A.  B.,  late  of,  &.C.,  attorney  at  law,  being  an  inhabitant  of, 
and  resident  within  the  United  States,  and  under  the  protection  of 

(l)  This  conclusion  lins  been  liold  indispcnsal)le ;  1  Erist  P.  C.  115;  2  Chit.  C.  L.  63. 
Under  the  act  of  April  30th,  1790,  s.  1,  as  has  been  noticed,  there  must  be  somewhere  in 
the  indictment  the  express  ailerfalion  that  tlic  defendant  owed  alleg-iance  to  the  United 
States  of  America,  and  the  practice  is  not  only  to  charj.H!  such  ailcfj-iancc  in  the  b(.dy  of 
the  indi'lmcrit,  luit  to  aver  the  ricfend.mt  to  have  olfcnded  ag-ainst  it  in  the  eonehision. 

(n)  Davis'  I'rcr.  251.  This  indictment  was  used  apainst  Aaron  Huir,  and  is  taiicri  from 
tlic  procccding.s  transmitted  to  congress.     Tlic  superfluous    matter   j)iobably  copied  from 


TREASO.V.  639 

the  laws  of  the  United  States,  and  owing  allegiance  and  fidelity  to 
the  said  United  States,  not  weighing  the  duty  of  his  said  allegiance, 
but  wickedly  devising  and  intending  the  peace  and  tranquillity  of  iheT 
said  United  States  to  disturb,  and  to  stir,  move,  and  excite  insurrec- 
tion, rebellion  and  war  against  the  said  United  States,  on,  &c.,  at, 
&c.,  and  within  the  jurisdiction  of  this  court,  unlawfully,  falsely, 
maliciously  and  traitorously  did  compass,  imagine  and  intend  to 
raise  and  levy  war,  insurrection  and  rebellion  against  the  said  United 
States;  and  in  order  to  fulfil  and  bring  to  effect  the  said  traitorous 
conipassings,  imaginations  and  intentions  of  him  tlie  said  A.  B.,  he 
the  said  A.  B.,  afterwards,  to  wit,  on,  &.c.,  at,  &c.,  and  within  the 
jurisdiction  of  this  court,  with  a  great  multitude  of  persons  (whose 
names  to  the  grand  inquest  aforesaid  are  at  present  unknown),  to  the 
number  of  thirty  persons  and  upwards,  armed  and  arrayed  in  a  war- 
like manner,  that  is  to  say,  with  guns,  swords,  dirks  and  other 
warlike  weapons,  as  well  offensive  as  defensive,  being  then  and 
tliere  unlawfully,  maliciously  and  traitorously  assembled  and  gathered 
together,  did  falsely  and  traitorously  join  and.  assemble  themselves 
together,  against  the  said  United  States,  and  then  and  tliere,  with 
force  and  arms  did  falsely  and  traitorously,  and  in  a  hostile  and 
Avarlike  manner,  array  and  dispose  themselves  against  the  said  United 
States  ;  and  then  and  there,  on,  &c.,  at,  &c.,  and  within  the  jurisdic- 
tion of  this  court,  in  pursuance  of  such  their  traitorous  intentions  and 
purposes  aforesaid,  he  the  said  A.  B.,  with  the  said  persons  so  as 
aforesaid  traitorously  assembled,  armed  and  arrayed  in  manner  afore- 
said, most  wickedly,  maliciously  and  traitorously  did  ordain,  prepare 
and  levy  war  against  the  said  United  States,  contrary  to  the  duty  of 
the  allegiance  and  fidelity  of  the  said  A.  B.,  against,  &c.  {Conclude 
as  in  book  1,  chap.  3). 

{For final  count,  see -p.  17,  97  n,  123  n). 

Traitorously  adhering  to,  and  giving  aid  and  comfort  to  the  enemies 
of  the  United  States. (o) 

That  on,  &c.,and  long  before,  and  continually  from  thence  hitherto, 
an  open  and  public  war  was,  and  yet  is  prosecuted  and  carried  on 
between  the  United  States  of  America,  and  the  persons  exercising 
the  powers  of  government  in  France  ;  and  that  A.  B.,  late  of,  &c.,  a 
citizen  of  the  said  United  States,  well  knowing  the  premises,  but  not 
regarding  tlie  duty  of  his  allegiance-,  but  as  a  traitor  against  the  said 
United  States,  and  wholly  withdrawing  the  allei^iance,  fidelity  and 
obedience,  which  every  citizen  of  the  said  United  States  of  right 
ought  to  bear  towards  the  govenmient  and  people  thereof,  and  con- 
sf)iring,  contriving  and  intending,  by  all  the  means  in  his  power,  to 
aid  and  assist  the  persons  exercising  the  powers  of  government  in 
France,  and  being  enemies  of  the  said  United  States,(/>)  in  the  prose- 

tlie  obsolete  Engflish  forms  is  here  omitted.  See  4  Cranch  471-488,  for  an  exposition 
of  the  law  of  treason  ajjainst  the  United  States. 

(o)  Davis'  Free.  253;  2  Chit.  6S-7.3 ;  Gordon's  Digest  699,  art.  3584. 

{p)  It  must  a|»pear  on  the  face  of  the  indictment  that  the  persons  adliered  to  were  ene- 
mies ;  Arch.  4jG. 


640  OFFENCKS  AGAINST  SOCIETY. 

cution  of  the  said  war  against  the  said  United  States,  heretofore,  and 
during  the  said  war,  to  wit,  on,  &,c.,  aforesaid,  and  on  divers  other 
'days  and  times,  as  well  before  as  after  that  day,  the  said  A.  B.,  witli 
force  and  arms  at,  &c.,  mahciously  and  traitorously  did  adhere  to, 
and  give  aid  and  comfort  to  the  said  persons  exercising  the  said 
powers  of  government  in  France,  then  being  enemies  of  the  said 
government  of  the  said  United  Slates ;  and  that  in  the  prosecution, 
performance  and  execution  of  his  the  said  A.  B.'s  treason  and  traitorous 
adhering  aforesaid,  and  to  I'ulfil,  perfect  and  bring  the  same  to  effect, 
he  the  said  A.  B.,  as  such  traitor  as  aforesaid,  during  the  said  war, 
ta  wit,  on,  &.c,,  aforesaid,  and  on  divers  other  days  and  times,  as  well 
before  as  after  that  day,  at,  &c.,  with  force  and  arms,  maliciously 
and  traitorously  did(5')  conspire,  consult,  consent  and  agree  with  one 
J.  H.  I.,  one  VV.  J.  and  divers  other  false  traitors,  whose  names  are 
to  the  jurors  aforesaid  unknown,  to  aid  and  assist,  and  to  seduce  and 
procure  others,  citizens  of  the  said  United  States,  to  aid  and  assist  the 
said  persons  exercising  the  powers  of  government  in  France,  and 
being  enemies  to  the  United  States  as  aforesaid,  in  a  hostile  invasion 
of  the  dominions  of  the  said  United  States,  and  in  the  prosecution  of 
the  said  war  against  the  said  United  States;  against,  &c.,  and  con- 
trary, &c.  {Conclude  as  in  book  1,  chajj.  3). 
{For  final  count,  see  p.  17,  97  ?i,  123  n). 

Jlidivg  and  comforting  the  enemy,  with  overt  acts  specially  pleaded, 
consisting  of  sending  provisions  in  a  vessel  to  one  of  the  enemy^s  ves- 
sel s.{r) 

That  on,  &c.,  an  act  of  the  congress  of  the  U.  S.  of  A.,  entitled  "an 
act  declaring  war  between  the  U.  K.  of  G.  B.  and  I.  and  the  depen- 
dencies thereof,  and  the  U.  S,  of  A.  and  their  territories,"  was  ap- 
proved by  the  president  of  the  U.  S.  of  A.,  and  that  continually  from 
thence,  to  wit,  from  the  said,  &c.,  hitherto,  by  land  and  sea  an  open 
and  public  war  was  and  yet  is  prosecuted  and  carried  on  between 
the  said  U.  S.  of  A.  and  their  territories  and  the  said  U.  K.  of  G.  B., 
&c.,  that  is  to  say,  at  the  County  of  Philadelphia  aforesaid,  in  the  dis- 
trict of  Pennsylvania  aforesaid,  and  that  the  king,  &c.,  and  his  sub- 
jects continually  thence,  to  wit,  from  the  said,  &c.,  iiitherto  and  yet, 
were  and  are  enemies  of  the  said  U.  S.  of  A.,  that  is  to  say,  at,  &c., 
and  that  W.  P.,  late  of,  &c.,  mariner,  a  citizen  of  the  said  U.  S.  of  A., 
owing  allegiance  and  fidelity  to  the  said  U.  S.  of  A.,  well  knowing 
the  premises  but  not  regarding  the  duty  of  his  allegiance,  not  having 
the  fear  of  God  in  his  heart,  but  being  moved  and  seduced  by  the  in- 
stigations of  the  devil,  as  a  false  traitor  against  the  said  U.  S.  of  A., 
and  wholly  withdrawing  the  allegiance  and  fidelity  which  every  true 
and  faithful  citizen  of  the  U.  S.  of  A.  should  and  ought  of  right  to 

(7)  An  allepafion  that  the  defendant  sent  intcllijrencc  to  the  enemy,  has  been  held  snfR- 
cient,  without  setting  forth  tlie  particular  letter  or  ilH  contents;  Ifesp.  «.  (  ^'irlislp,  1  Dali.  35. 

(rj  United  States  v.  Prior,  3  Wash.  C-.  C.  R.  234.  The  indictment  Contained  five  counts, 
the  first  four  of"  which  were  ahandoned  hy  the  district!,  attorney  for  want  nt'  (■vi(len(•(^  and 
oo  the  last  the  defendant  was  acquitted.  'I'he  bill  was  drawn  by  Mr.  A.J.  Dallas,  the  dis- 
1(  let  attoitiev. 


TREASON.  G41 

bear  toward  the  said  U.  S.  of  A.,  and  wickedly  continuing  and  with 
all  [lis  strength  intending  to  aid  and  assist  the  said  king,  &c.,  and  liis 
subjects,  then  being  enemies  of  the  said  U.  S.  of  A.  in  the  prosecu- 
tion of  the  said  war  against  the  said  U.  S,  of  A.,  heretofore  and 
during  tlie  said  war,  to  wit,  on,  &c.,  and  on  divers  other  days  as  well 
before  as  after  the  said  last  mentioned  day,  with  force  and  arms  at, 
&.C.,  maliciously  and  traitorously  did  adhere  to  the  said  king,  &c.,  and 
his  subjects,  &c.,  then  being,  &c.,  giving  them  aid  and  comfort;  and 
that  in  the  *  prosecution,  performance  and  execution  of  his  treason 
and  traitorous  adhering  aforesaid,  he  the  said  W.  P.,  as  such  false 
traitor  as  aforesaid,  during  the  said  war,  to  wit,  on,  &c.,  and  on  divers 
other  days  as  well  before  as  after  the  last  mentioned  day,  *  at,  &,c., 
with  force  and  arms,  maliciously  and  traitorously  did  conspire,  con- 
sult, consent  and  agree  with  divers  other  false  traitors,  whose  names 
are  to  the  said  grand  inquest  unknown,  to  aid  and  assist  the  said  king, 
&c.,  in  a  hostile  blockade  of  the  said  U.  S.  of  A.,  and  in  the  prosecu- 
tion of  the  said  war  against  the  said  U.  S.  of  A.  And  in  further  pro- 
secution, {here  insert  part  on  p.  641  between  **  and  conthnie):  at, 
(fee,  with  force  and  arms,  maliciously  and  traitorously  did  procure 
and  prepare  and  cause  to  be  procured  and  prepared  a  certain 
schooner  called  the  P.,  and  certain  mariners  whose  names  are  to 
the  said  grand  inquest  unknown,  for  the  unlawful  and  traitorous  pur- 
pose of  conveying  and  transporting  in  and  on  board  of  the  said 
scliooner  called  the  P.,  by  the  said  W.  P.  traitorously  procured  and 
prepared  and  caused  to  be  procured  and  prepared  as  aforesaid,  cer- 
tain provisions  and  necessaries,  that  is  to  say,  {here  specify  articles), 
from,  &c.,  unto  certain  ships  and  vessels  of  war  belonging  to  the  said 
king  of,  &c.,  and  officered  and  manned  by  his  subjects,  t  the  said 
king,  &c.,  and  his  said  subjects,  the  said  officers  and  men  of  the  said 
ships  and  vessels  of  war,  then  and  yet  being  enemies  of  the  said  U.  S. 
of  A.,  and  the  sliips,  &c.,  then  being  in  and  near  the  bay  and  river 
D.,  hostilely  employed  in  blockading  the  ports  and  harhom-s  of  the 
said  river  D.  in  the  said  U.  S.  of  A,,  t  to  the  intent  unlawt'ully  and 
traitorously  to  deliver  and  cause  to  be  delivered  the  said  provisions 
and  necessaries,  to  wit,  {here  specify  the  articles),  X  at,  to  and  on 
board  of  the  said  ships,  &,c.,  some  or  one  of  them  for  the  aid  and 
comfort,  supply,  sustenance  and  use  of  the  officers  and  crews  of  the 
said  ships,  &c.,  being  subjects  of  the  said  king,  &c.,  as  aforesaid,  and 
being  then  and  yet,  together  with  their  said  king,  enemies  of  the  said 
U.  S.  of  A.,  in  the  prosecution  of  the  said  war  against  the  said  U. 
S.  of  A.  X 

And  in  further  prosecution,  {here  insert  part  on  p.  641  hetiueen  ** 
and  continue):  at,  &c.,  with  force  and  arms,  did  take  and  receive 
and  cause  to  be  taken  and  received  in  and  on  board  of  the  said 
schooner  called  the  P.,  whereof  the  said  W,  P.  was  then  and  there 
owner  and  master,  certain  provisions,  for  the  unlawful  and  traitorous 
purpose  of  conveying  and  transporting  the  said  provisions,  &c,,  in 
and  on  board  of  the  said  schooner  called  the  P.,  from,  <>cc.,  into  cer- 
tain ships,  &.C.,  belonging  to  the  said  king,  &c.,  and  officered  and 
manned  by  his  subjects,  {here  insert  part  on  p.  641  between  ft  avd 
continue):  to  the  intent  unlawfully  and  traitorously  to  deliver  and 

54' 


fv42  OFFENCES  AGAIXST  SOCIETY. 

cause  to  be  delivered  the  said  provisions,  &c.,  to  wit,  {specifyinp^ 
them),  by  the  said  W.  P.,  traitorously  taken  and  received  and  caused 
to  be  taken  and  received  in  and  on  board  of  tlie  said  schooner  called 
the  P.  as  aforesaid,  {here  insert  pari  on  p.  641,  between  tt) 

And  in  further,  {here  insert  part  on  p.  641,  between  **  and  con- 
tinue): at,  &c.,  with  force  and  arms  maliciously  and  traitorously  in- 
to a  certain  schooner  called  the  P.,  by  tliesaid  W.  P.  then  and  there 
maliciously  and  traitorously  procured  and  prepared  and  caused  to  be 
procured  and  prepared  as  aforesaid  for  his  traitorous  purposes  afore- 
said, then  and  there  having  on  board  of  the  said  schooner  called  the 
P.  certain  provisions,  &c.,  to  wit,  [specifying  them),  by  the  said  W. 
P.,  then  and  there  mahciously  and  traitorously  taken  and  received 
on  board  thereof  as  albresaid  for  his  traitorous  purposes  aforesaid, 
then  and  there  did  enter  and  in  and  with  the  said  schooner  P.  did 
maliciously  and  traitorously  sail  and  depart  from,  &c.,  towards  certain 
ships,  &c.,  belonging  to  the  said  king,  &c.,  and  maimed  by  his  subjects, 
{here  insert  part  on  p.  641  between  tt),  to  the  intent  the  said  provi- 
sions, &c.,  to  wit,  {specifying  them),  by  the  said,  &c.,  traitorously  taken 
and  received  and  caused  to  be  taken  and  received  on  board  the  said 
schooner  called  the  P.  as  aforesaid,  unlawfully  and  traitorously  to  de- 
liver and  cause  to  be  delivered  {here  insert  part  on  p.  641  between 

XX)- 

And  in  further,  {here  insert  part  on  p.  641  between  ''*),  at,  &c., 
with  force  and  arms  maliciously  and  traitorously  did  convey  and 
transport  and  cause  to  be  conveyed  and  transported  in  the  said 
schooner  called  the  P.,  whereof  the  said  W.  P.  was  then  and  there 
owner  and  master,  certain  provisions,  &c.,  toward  and  to  certain  ships, 
&c.,  belonging  to  the  said  king,  &c.,  and  officered  and  manned  by  his 
subjects,  {here  insert  part  on  p.  641  between  tt  and  continue) :  to 
the  intent  unlawfully  and  traitorously  the  said  provisions  and  neces- 
saries to  deliver  and  cause  to  be  delivered,  {here  insert  part  on  p. 
641  between  X\). 

And  the  said  provisions  and  necessaries  by  the  said  W.  P.  so  trai- 
torously conveyed  and  transported  and  caused  to  be  conveyed  and 
transported  in  the  said  schooner  called  the  P.  from,  &c.,  toward  and 
to  the  said  ships  of  war  for  the  traitorous  purposes  aforesaid,  the  said 
W.  P.  maliciously  and  traitorously  delivered  and  caused  to  be  deliver- 
ed, {here  insert  part  on  p.  641  between  X\),  to  wit,  at,  &c. 

And  in  further,  {here  insert  part  on  p.  641  between  **),  at,  &:c., 
with  force  and  arms  maliciously  and  traitorously  did  then  and  there 
procure  and  prepare  .and  caused  to  be  procured  and  prepared  a 
certain  schooner  called  the  P.,  with  certain  mariners  whose  names 
are  to  the  said  grand  inquest  unknown,  and  maliciously  and  traitor- 
ously did  then  and  there  take  and  receive  and  cause  to  be  taken  and 
received  in  and  on  board  of  the  said  schooner  called  the  P.  certain 
provisions,  &c.,  to  wit,  {specifying  them),  and  did  then  and  there 
maliciously  and  traitorously  enter  into  the;  said  schooner  called  the  P. 
and  did  then  and  there  maliciously  and  traitorously  sail  and  depart  in 
the  said  schooner  called  the  P.  with  the  said  provisions,  &c.,  on  board 
thereof  as  aforesaid  from,  &c.,  down  the  river  and  bay  of  D.  toward 
the  high  seas,  to  the  intent  the  said  provisions  and  necessaries  by  the 


•      TREASON.  '  643 

said  W.  P.  traitorously  taken  and  received  and  caused  to  be  taken 
and  received  in  and  on  board  of  the  said  schooner  called  the  P.  as 
aforesaid,  maliciously  and  traitorously  to  deliver  and  cause  to  be  de- 
livered on  the  high  seas  aforesaid,  to  the  said  enemies  of  the  said  U. 
S.  of  A.,  in  and  on  board  of  a  certain  vessel  of  war  (whose  name  is 
to  the  said  grand  inquest  unknown),  belonging  to  the  said  king,  &:c., 
then  and  yet  an  enemy  of  the  said  U.  S.  of  A.,  for  the  aid,  comfort, 
supply,  sustenance  and  use  of  the  said  enemies  of  the  said  U.  S.  of  A. 
in  carrying  on  and  prosecuting  the  said  war  against  the  said  U.  S.  of 
A. 

And  in  further,  {Jiere  insert  part  on  p.  641  between  **  and  con- 
tinue): on  the  high  seas,  out  of  the  jurisdiction  of  this  court,  to  wit, 
at,  &c.,  with  force  and  arms  maliciously  and  traitorously  did  tlien  and 
there  deliver  and  cause  to  be  delivered  from  and  out  of  a  certain 
schooner  called  the  P.  then  and  there  being,  whereof  the  said  W.  P. 
was  then  and  there  master,  unto  the  said  enemies  of  the  said  U.  S. 
of  A.,  then  and  there  being  and  on  board  of  a  certain  vessel  of  war 
whose  name  is  to  the  said  grand  inquest  unknown,  belonging  to  the 
said  king,  &c.,  then  and  yet  being  an  enemy  of  the  said  U.  S.  of  A., 
certain  provisions,  &c.,  for  the  aid,  comfort,  supply,  sustenance  and 
use  of  the  said  enemies  of  the  said  U.  S.  of  A.,  in  the  prosecution  of 
the  said  war  against  the  said  U.  S.  of  A. 

§  And  in  further,  {here  insert  part  on  p.  641  between  **  and  pro- 
ceed): being  in  and  on  board  of  a  certain  ship  of  war  whose  name  is  to 
the  said  grand  inquest  unknown,  belonging  to  the  said  king,  &c.,  then 
and  yet  an  enemy  of  the  said  U.  S.  of  A.,  the  said  ship  of  war  lying 
and  being  in  the  bay  of  D.,  to  wit,  at,  &c.,  did  then  and  there  mali- 
ciously and  traitorously  §  undertake  to  procure  and  cause  to  be  pro- 
cured from  the  shore  and  territory  of  the  said  U.  S.  of  A.  ||  certain 
provisions,  necessaries  and  articles  of  food,  to  wit,  to  the  intent  the 
said  provisions,  necessaries  and  articles  of  food,  the  said  bullocks  and 
live  stock  by  the  said  W.  P.  traitorously  procured  and  caused  to  be 
procured  as  aforesaid,  maliciously  and  traitorously  to  deliver  and 
cause  to  be  delivered  to  and  on  board  of  the  said  last  mentioned  ship 
of  war,  for  the  aid, comfort,  supply,  sustenance  and  use  of  the  officers 
and  crews  thereof,  being  enemies  of  the  said  U.  S.  of  A.,  in  the  prose- 
cution of  the  said  war  against  the  said  U.  S.  of  A.  1| 

{Here  insert  part  on  p.  643  betiveen  §§  and  proceed) :  depart  from 
the  said  ship  of  war  last  mentioned  in  a  boat,  and  did  maliciously  and 
traitorously  proceed  in  the  said  boat  towards  and  to  the  territory  of 
the  said  U.  S.  of  A.  for  the  traitorous  purpose  of  procuring  and  causing 
to  be  procured,  {here  insert  part  on  p.  643  between  \\\\  and  conclude): 
in  contempt  of  the  said  U.  S.  of  A.,  their  constitution  and  laws,  to  the 
evil  example  of  all  others  in  like  case  offending,  contrary  to  the  duty 
of  allegiance  of  him  the  said  W.  P.,  against,  (fee,  and  against,  ttc. 
{Conclude  as  in  book  1,  chap.  3). 

{For final  count,  see  p.  17,  97  n,  123  n). 


644  OFFEXCKS   AGAIXST  SOCIKTY. 

Illegal  outfit  of  vessel,  (SfC,  against  a  foreign  nation,  ^'C.{s) 

That  J.  M.,  late  of,  &c.,  in  the  district  aforesaid,  mariner,  on,  &c., 
within  the  port  of  Pliiladelpfiia,  being  a  port  of  the  United  States,  to 
wit,  in  the  said  district  of  Pennsylvania,  did  unlawfully  *  fit  out  and 
arm  a  certain  brig  or  vessel,  called  "  The  Friends,"  then  lying  and 
being  within  the  port  aforesaid,  with  intent  that  the  said  brig  or  ves- 
sel should  be  employed  in  the  service  of  the  king  of  the  united  king- 
dom of  Great  Britain  and  Ireland,  being  a  foreign  prince  with  whom 
the  said  United  States  are  and  then  were  at  peace,  to  cruise  and 
commit  hostilities  upon  the  citizens  and  property  of  the  Batavian 
Republic,  and  upon  the  citizens  and  property  of  the  French  Republic, 
being  foreign  states,  with  whom  the  said  United  States  are  and  then 
were  at  peace,  and  upon  the  citizens  and  property  of  other  states, 
being  foreign  states  with  whom  the  said  United  States  are  and  then 
were  at  peace,  to  the  evil  example  of  others  in  the  like  case  offend- 
ing, against,  &c.,and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count. 

(Same  as  first,  inserting  at  *  the  words):  "  attempt  to." 

[yidd  third  and  fourth  counts,  averring  that  defendant  did 
"unlawfully  procure  to  be  fitted  out  and  armed,"  &c.,  and  that  he 
"  was  unlawfully  concerned  in  furnishing,  fitting  out  and  arming," 
the  rest  being  as  in  first  count.) 

{For  final  count,  see  p.  17,  97  n,  123  7i). 

Beginnivg,  setting  on  foot,  providing  and  preparing  the  means  of  a 
military  enterprise  or  expedition,  against  the  territory  or  dominions  of 
a  foreign  prince.{t) 

That  W.  S.  S.,  late  of,  &c.,  did  on,  &c.,  within  the  (territory(w)  and) 
jurisdiction  of  the  said  United  States,  to  wit,  at,  &c.,  begin  a  certain 
military  expedition  to  be  carried  on  from  thence  against  the  do- 
minions of  a  foreign  prince,  to  wit,  the  dominions  of  the  king  of 
Spain,  the  said  United  States  then  and  there  being  at  peace  with  the 
said  king  of  Spain,  against,  &c.,  to  the  evil  example  of  all  others  in 
like  case  offending,  and  against,  &c.  {Conclude  as  in  book  1,  chap.  3). 

Second  count. 

That  the  said  W.  S.  S.,  afterwards,  to  wit,  on,  &c.,  within  the 
(territory  and)  jurisdiction  of  the  said  United  States,  to  wit,  at,  &c., 

(s)  U.  S.  V.  Metcalfe.  This  indictment  was  drawn  by  Mr,  A.  J.  Dallas,  in  1804.  The 
defendant  pleaded  nolo  contendere. 

{I)  This  indictment  was  used  in  the  trial  of  Smith,  for  eng-ag-ing'  in  Miranda's 
expedition  ;  and,  with  a  verbal  alteration  in  tlie  fourth  and  fifth  counts,  is  the 
same  as  those  used  on  the  trial  of  ,0<rdcn  for  the  same  offence,  and  on  the  trial  of  La 
CVoix,  for  setting  on  foot  an  expedition  against  Mexico,  in  1814.  It  is  founded  on  the 
fiftli  section  of  tlic  act  of  June  .'Jtli,  17!)  1,  which  declares,  "  that  if  any  |)erson  shall  within 
the  territory  or  jurisdiction  of  tiie  United  States,  begin  or  set  on  foot,  or  j)rovide  or  pre- 
pare the  means  of  any  military  expedition  or  enter|)riHe,  to  be  carried  on  from  thence 
against  the  t(;rritory  or  dominions  of  any  foreign  prince  or  state,  with  wliom  tlie  United 
States  are  at  |)eacc,  every  such  person  so  olFendirig,  shall,  upon  conviction  be  adjudged 
guilty  of  a  misdemeanor,"  &c. 

(?/)  The  words  in  brackets  were  inserted  by  Mr.  Dallas  in  the  indictment  against  La 
Croix. 


TREASOX.  C15 

with  force  and  arms  did  set  on  foot-a  certain  military  enterprise,  to 
be  carried  on  from  thence  against  the  territory  of  a  foreign  prince, 
to  wit,  the  territory  of  the  king  of  Spain,  the  said  king  of  Spain  then 
and  there  being  at  peace  with  the  said  United  States,  against,  ike,  to 
the  evil  example,  6ic.,  and  against,  &c.  (^Conclude  as  in  book  1, 
chap.  3). 

Third  count. 

(Same  as  second  count  down  to  "  force  and  arms,"  and  then  pro- 
ceed as  follows):  Set  on  foot  a  certain  other  military  enterprise,  to 
be  carried  on  from  thence  against  the  territory  of  a  foreign  prince,  to 
wit,  against  the  province  of  Caraccas,  in  Sontli  America,  the  said 
province  of  Caraccas  then  and  there  being  the  territory  of  the  king 
of  Spain,  and  the  said  king  of  Spain  then  and  there  being  at  peace 
with  the  said  United  States,  against,  &c.,  to  the  evil  example,  &.C., 
and  against,  &c.     [Conclude  as  in  book  1,  chap.  3), 

Fourlh  count. 

{Same  us  second  count  down  to  "  force  and  arms,"  and  then  pro- 
ceed as  follows):  Provide  the  means,  to  wit  (thirty  n)en  and  three 
hnndred  dollars  in  money),  for  a  certain  other  military  enterprise,  to 
be  carried  on  from  thence  against  the  dominions  of  a  foreign  prince, 
to  wit,  against  the  dominions  of  the  king  of  Spain  in  South  America, 
the  said  king  of  Spain  then  and  there  being  at  peace  with  the  said 
United  States,  agamst,  &c.,  to  the  evil  example,  &,c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

Fifth  cuiint. 

{Same  as  second  count  down  to  "  force  and  arms,"  a)id  then  pro- 
ceed as  follows) :  Prepare  the  means,  to  wit  (thirty  men  atid  three 
himdred  dollars  in  money),  for  a  certain  other  military  expedition, 
to  be  carried  on  from  thence  against  the  province  of  Caraccas,  in 
South  America,  the  said  province  of  Caraccas  then  and  there  being 
the  territory  of  a  foreign  prince,  to  wit,  the  territory  of  the  king  of 
Spain,  and  the  said  king  of  Spain  then  and  there  being  at  peace  with 
the  said  United  States,  against,  &c.,  to  the  evil  example,  (SiC,  against, 
&c.     {Conclude  as  in  book  1,  chap.  3). 

Sixth  count. 

{Same  as  second  count  down  to  "force  and  arms,"  and  then  pro- 
ceed as  follows):  Provide  the  means,  to  wit,  (thirty  men,  whose 
names  are  to  the  jurors  aforesaid  yet  unknown,  and  three  hundred 
dollars  in  money),  for  a  certain  other  military  expedition,  to  be  car- 
ried on  from  thence  against  the  dominions  of  some  foreign  state,  to 
the  jurors  aforesaid  unknown,  yet  with  whom  the  said  United  States 
were  then  and  there  at  peace,  against,  &c.,  to  the  evil  example,  &,c., 
and  against,  Slc.     {Conclude  as  in  book  1,  chap.  3). 

Seventh  count. 

{Same  as  second  count  down  to  "  force  and  arms,"  and  then  pro- 
ceed as  follows):  Set  on  foot  a  certain  other  military  enterprise,  to 
be  carried  on  from  thence  against  the  dominions  of  some  foreign 
state,  to  the  jm-ors  aforesaid  yet  mdaiown,  with  whom  the  said 
United  States  were  then  and  there  at  peace,  ngainst,  &.C.,  to  the  evil 
example,  &c.,  and  against,  &c.     {Conclude   as  in  book  1,  chap.  3). 

{For  final  count,  S"e  p.  17,97  n,  rJ3  //). 


646  OFFEivcas  against  society. 

Conspiracy  to  rynpede  the  operation  of  certain  acts  of  congress.     First 
count,  conspiracy  aJone.^o) 

That  H.  S.,  &c.,  on,  &c.,  at,  &c.,  within  the  jurisdiction  of  this 
court,  with  divers  other  persons  to  the  said  grand  inquest  unknown, 
did  unlawfully  combine  and  conspire  together  with  intent  to  impede  the 
operation  of  a  law  of  the  United  States,  entitled  "  an  act  to  provide  for 
the  valuation  of  lands  and  dwelling  houses,  and  the  enumeration  of 
slaves  within  the  United  States,"  and  also  a  law  of  the  said  United 
States,  entitled  "  an  act  to  lay  and  collect  a  direct  tax  witliin  the  United 
States,"  and  to  intimidate  and  prevent  the  assessors  and  other  persons 
appointed  to  carry  the  same  acts  into  execution,  from  undertaking, 
performing  and  fulfilling  their  trusts  and  duties,  *  to  the  evil  example, 
&c.,  against,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3). 

Second  count.     Overt  act;  rioting,  ^c. 

[Same  with  first  down  to  *,  and  proceed) :  "the  said  H.  S.  (and 
the  others),  with  the  unlawful  intent  aforesaid,  afterwards,  to  wit, 
the  same  day  and  year,  at  the  district  aforesaid  and  within  the  juris- 
diction of  this  court,  did  counsel,  advise  and  attempt  to  procure  an 
insurrection,  riot  and  unlawful  assembly,  to  the  evil  example,  &,c., 
against,  &c.,  and  against,  &c.     {Conclude  as  in  book  1,  chap.  3), 

Third  count.     Rescue  of  person  under  custody  of  marshal. 

That  whereas  R.  P.,  Esq.,  Judge  of  the  District  of  the  United 
States  in  and  for  the  District  of  Pennsylvania,  on,  &c.,  at  P.,  in  the 
district  aforesaid,  did  make,  direct  and  deliver  his  warrants  or  precepts 
in  writing  to  W,  N.,  Esq.,  he  the  said  W.  N.  then  and  there  being 
marshal  of  the  said  district  of  Pennsylvania,  by  which  said  warrants 
he  the  said  W.  N.,  the  marshal  aforesaid,  was  commanded  to  take 
the  bodies  of  D.  D.  {and  five  others,  naming  them),  with  sundry 
other  persons,  late  of  the  Couniy  of  Northampton,  yeomen,  and  bring 
them  before  him  the  said  R.  P.  to  find  sufficient  sureties  for  their  ap- 
pearance at  the  next  stated  session  of  the  Circuit  Court  of  the  United 
States  for  the  Middle  Circuit  and  District  of  Pennsylvania,  to  be 
holden  at  Philadelphia  on,  &c.,  to  answer  to  a  charge  of  being  con- 
cerned in  an  unlawful  conspiracy  and  combination  to  impede  the 
operation  of  a  law  of  the  United  States  entitled  "an  act  to  lay  and 
collect  a  direct  tax  within  the  United  States,"  and  to  such  other  mat- 
ters as  should  in  behalf  of  the  United  States  be  then  and  there 
objected  against  them,  and  further  to  be  dealt  with  according  to 
law,  t  which  said  W.  N.,  the  marshal  aforesaid,  afterwards,  that  is  to 
say,  on,  &.C.,  at  the  district  aforesaid,  by  virtue  of  the  said  warrants 
did  take  and  arrest  them  the  said  D.  H.  {and  the  others,  naming 
them),  for  the  cause  aforesaid,  and  them  the  said  D.  11.  {arid  the 
others,  naming  them),  in  his  custody  by  virtue  of  the  said  warrant 
then  and  there  had;  and  the  said  II.  S.  [and  the  other  defendants, 
naming  them),  well  knowing  the  said  D.  IL  {and  the  others,  naming 
them),  to  be  arrested  as  aforesaid,  afterwards,  to  wit,  on,  &c.,  at,  &.c., 
with  force  and  arms  and  against  the  will  of  the  said  W.  N.,  unlaw- 
fully did   rescue   and  set  at  large   the  said  D.  II.  [and  the  others. 

(c)  U.  S.  Cir.  Ct.  for  I'u.  17!)!).  TliiH  fijrni  vvns  used  nir;iii)st  tlic  Norllininiitoii  liisurgciUs. 


TREASON.  647 

nntning  fhan),  to  go  where  they  would,  in  contempt  of  the  said 
United  States  and  the  laws  thereof,  to  the  great  damage  of  the  said 
W.  N.,  to  the  evil  example,  Sic,  and  against,  Sic.  [Conclude  as  in 
book  1,  chap.  3). 

Fourth  count. 

{Same  as  third  down  to  t,  and  then  proceed) :  the  said  H.  S., 
&c.,  well  knowing  the  premises,  afterwards,  to  wit,  on.  Sic,  at,  &c., 
knowingly  and  wilfully  did  obstruct,  resist  and  oppose  the  said  W.  N., 
then  and  there  being  marshal  as  aforesaid,  in  executing  the  said  war- 
rants, so  that  the  said  W.  N.,  the  said  marshal,  by  reason  of  such 
unlawful  obstruction,  resistance  and  opposition  was  hindered  and 
prevented  from  executing  the  said  warrants,  and  could  not  bring  the 
said  D.  H.,  &c.,  before  the  said  R.  P.  the  said  judge  of  the  district 
aforesaid,  as  by  the  said  warrants  he  was  commanded,  against  the 
form  of  the  act  of  congress  aforesaid  in  such  case  made  and  pro- 
vided, in  contempt,  &.c.,.to  the  evil  example,  &c.,  and  against,  &c. 
{Conclude  as  in  book  1,  chap.  3). 

{For  final  count,  see  p.  17,  97  n,  123  n). 

Conspiracy  to  raise  an  insurrection  against  the  United  States.  First 
count,  by  advising  the  people  to  resist  the  execution  of  the  excise 
lau:{ic) 

That  W,  B.,  late  of,  &c.,  yeoman,  being  an  evil  disposed,  pernicious 
and  seditious  person  and  of  a  wicked  and  turbulent  disposition,  false- 
ly, maliciously  and  unlawfully  intending  and  contriving  the  peace 
and  tranquillity  of  tlie  United  States  of  America  to  disquiet,  molest 
and  disturb,  and  as  much  as  in  him  lay,  seditious  insurrection  and 
rebellion  against  the  said  United  States  to  incite,  move  and  procure, 
and  to  bring  the  constitution  and  laws  thereof  into  danger  and  con- 
tempt, and  in  pursuance  of  such  his  false,  wicked  and  unlawful  de- 
signs he  the  said  W,  B.  on,  &c.,  at,  Sic,  and  with  force  and  arms 
unlawfully,  maliciously  and  seditiously  did  assemble,  unite,  conspire, 
consult  and  confederate  with  D.  M.  {and  others,  naming  them),  and 
divers  other  false  and  ill-disposed  persons  to  the  grand  inquest  as 
aforesaid  yet  unknown,  and  with  the  same  other  persons  he  the  said 
W.  B.  then  and  there  treated  at  and  about  carrying  into  effect  his 
said  wicked  and  seditious  compassings,  imaginations  and  intentions, 
and  then  and  there  with  force  and  arms  unlawfully,  wickedly  and 
seditiously  did  consult,  combine  and  confederate  with  the  persons 
aforesaid  to  raise  an  insurrection  within  the  said  United  States,  and 
to  levy  war  against  the  same,  to  wit,  in  the  district  aforesaid,  and  to 
meet  and  assemble  themselves  together  in,  &c.,  armed  in  a  warlike 
manner  against  the  said  United  States,  and  to  array  and  dispose  them- 
selves in  a  traitorous  and  hostile  manner  against  the  said  United 
States  and  in  opposition  to  the  laws  thereof,  to  wit,  in  the  county 
aforesaid  in  the  district  aforesaid ;  and  he  the  said  VV.  B.  did  then  and 
there  openly  and  publicly  in  pursuance  of  his  said  malicious  and 
seditious  views  and  intentions,  openly  and  publicly  advise  and  recom- 

(ic)  U.  S.  V.  Bonliam,  1794.    This  was  one  of  the  indictments  against  the  wliisky  insur- 
gents.    The  case  was  never  tried. 


618  OFFEXCKS  AGAINST  SOCIETY. 

mend  to  the  citizens  ol'the  said  United  States  then  and  there  met  and 
assembled,  to  resist  and  oppose  the  execution  and  operation  of  the 
laws  of  the  said  United  States  for  collecting  a  revenue ;  against,  &c., 
and  against,  &c.     {Conclude  as  in  book  \,chap.  3). 

Second  count.  Setting  up  a  liberty  pole  for  the  purpose  of  inciting 
the  people  to  sedition.{x) 

That  the  said  W.  B.  being  a  pernicious,  seditious  and  ill-disposed 
person,  and  falsely,  maliciously  and  unlawfully  contriving  and  intend- 
ing the  peace  and  tranquillity  of  the  said  United  States  to  disquiet, 
molest  and  disturb,  and  as  much  as  in  him  lay,  seditious  insurrection 
and  rebellion  against  the  said  states  to  incite,  stir  and  promote,  and 
to  bring  the  constitution  and  laws  thereof  into  danger  and  contempt, 
on,  &c.,  at,  &c.,  in  the  public  highway  with  a  great  number  of  evil 
disposed  persons  whose  names  to  the  grand  inquest  aforesaid  are  yet 
unknown,  unlawfully,  maliciously  and  seditiously  did  erect  and  set 
up  a  certain  pole,  denominating  the  same  a  liberty  pole,  and  did  then 
and  there  maliciously  and  advisedly  affix  thereon  certain  inflamma- 
tory and  seditious  words  and  sentences,  wickedly  aud  maliciously 
intending  thereby  and  with  all  his  might  endeavouring  to  encourage 
and  incite  the  citizens  of  the  said  United  States  within  the  district 
aforesaid,  and  to  oppose  and  resist  the  laws  and  authority  of  the  said 
United  States,  and  insurrection  and  war  against  the  same  United 
States  to  raise  and  levy,  against,  &c.,  and  against,  &c.  [Conchide  as 
in  book  \,  chap.  3). 

{For  final  count,  see  jp.  17,  97  n,  123  n). 

Conspiracy  to  assemble  a  seditious  ?neeting.     First  count.{y) 

That  H.  v.,  W.  E.,  J.  D.  and  W.  A.  T.,  being  seditious  and  evil 
disposed  persons,  intending  to  disturb  the  public  peace  and  to  excite 
discontent  and  disaffection,  and  to  excite  her  majesty's  subjects  to 
hatred  and  contempt  of  the  government  and  constitution  of  this 
realm,  heretofore,  to  wit,  on,  &c.,  at,  &c.,  did  conspire,  &c.,  together 
with  divers  other  persons  unknown,  unlawfully,  maliciously  and  sedi- 
tiously to  meet  and  assemble  themselves  together,  and  to  cause  and 
procure  a  great  number  of  other  persons  unlawfully,  maliciously  and 
seditiously  to  meet  and  assemble  themselves  together  witli  the  said 
II.  v.,  VV.  E.,  J.  D.  and  W.  A.  T.,  and  the  other  conspirators,  at,  &c., 
for  (he  purpose  of  exciting  discontent  and  disaffection  in  the  minds 
of  the  liege  subjects  of  our  said  lady  the  queen,  and  for  the  purpose 
of  moving  and  exciting  the  liege  subjects  of  our  said  lady  the  queen 
to  hatred  and  contempt  of  the  government  and  constitution  of  this 
realm,  as  by  law  established. (r) 

(x)  Jud^c  Addison  tlioiijrht  fliat  to  set  up  a  lil)ert,y  pole  was  a  mark  of  sedition  and  of 
disrespect  to  tiie  government,  wlitcli  n)iglit  be  |)unislicd  by  the  state  courts  as  a  misde- 
meanor at  common  law;  Pa.  «.  Morrison,  Add.  II.  274;  and  under  the  repealed  sedition 
act  of  171)8,  it  might  naturally  have  been  considered  a  seditious  act  cognizant  by  the  fede- 
ral courts. 

(y)  II.  V.  Vincent,  9  C.  <fe  P.  91.  The  jury  found  tiie  defendants  not  guilty  of  conspi- 
racy, b'lt  t^niilty  of  atleridinir  si;ditiniis  meetings. 

i'z)  The  second  cmnt  vvassimilar,  but  stated  as  an  overt  act  of  the  conspiracy,  that  the  nou- 
Sjjirators  ussembled  at,&c.,  on,  &c.,  to  the  number  of  two  tli'iusaiid  and  more,  in  u  menac- 


TREASO>f.  649 

Conspiring  to  raise  an  insurrection  and  obstruct  the  laics.    F.ist  count.(u) 

That  R.  S.,  on,  &c.,  and  on  divers  other  days  and  times,  at,  &c., 
did  conspire,  confederate,  combine  and  agree  togetlier  with  W.  J,, 
and  divers  other  evil  disposed  persons  to  the  jurors  aforesaid  un- 
known, to  raise  and  make  insurrections,  riots,  routs  and  seditious 
and  unlawful  assemblies  within  this  realm,  and  to  obstruct  the  laws 
and  government  of  this  realm,  and  to  oppose  and  prevent  their  due 
execution,  and  to  procure  and  obtain  arms  for  the  more  eft'ectual 
carrying  into  efiect  their  said  conspiracy,  confederacy,  &c.;  and  in 
furtherance  of  the  said  conspiracy,  confederacy,  &c.,  the  said  W.  J. 
during  the  time  aforesaid,  to  wit,  on,  &c.,  with  ibrce  and  arms,  to 
wit,  at,  &c.,  together  with  the  said  W.  J.,  and  divers  other  persons  to 
the  said  jurors  unknown,  to  the  number  of  two  thousand  and  more, 
unlawfully,  seditiously,  riotously  and  routouslydid  assemble  and  meet 
together,  armed  with  guns,  &c.,  and  remained  and  continued  so  un- 
lawfully and  seditiously  assembled  and  met  together,  armed  as  afore- 
said, for  a  long  space  of  time,  to  wit,  for  the  space  of  forty-eight 
hours  then  next  following;  and  during  that  time  made  a  great  riot, 
rout  and  unlawful  assembly,  and  during  the  time  last  afoiesud,  at- 
tacked and  broke  open  divers  dwelling  houses  of  divers  liege  subjects 
of  our  said  lady  the  queen,  in  the  county  aforesaid,  and  beat,  bruised, 
wounded  and  ill-treated  divers  of  the  liege  subjects  of  our  said  lady 
the  queen,  then  and  there  being  in  the  county  aforesaid,  and  seized 
and  took  from  the  said  last  mentioned  subjects  and  other  subjects  of 
our  said  lady  the  queen,  then  and  there  being  in  the  county  afore- 
said, divers  quantities  of  arms,  to  wit,  one  hundred  guns,  &.C.,  and 
therewith  then  and  there  unlawfully  and  seditiously  armed  them- 
selves, against,  &c.     {Conclude  as  in  book  1,  chap.  3). 


ing  manner  with  offensive  weapons,  and  did  cause  great  terror  and  alarm  to  the  peaceable 
and  well  disposed  subjects  ot'  her  majesty. 

The  third  count  was  in  the  following  form:  that  the  said  H.  V.,  W.  E.,  J.  D.  and  W. 
A.  T.,  being  such  persons  as  aforesaid,  and  unlawfully  and  maliciously  and  seditiously  in- 
tending and  devising  as  aforesaid,  heretofore,  to  wit,  on,  &,c ,  with  force  and  arms  at,  &-n., 
unlawfully,  maliciously  and  seditiously  and  in  a  tumultuous  manner  did  meet  and  assem- 
ble theniselves  together  with  divers  other  ill-disposed  persons,  whose  names  are  to  the 
jurors  aforesaid  unknown,  to  a  large  number,  to  wit,  to  the  number  of  two  thousand,  in  a 
formidable  and  menacing  manner,  in  a  ceitain  public  and  open  place  near  the  dwelling 
houses  of  divers  liege  subjects  of  our  said  lady  the  queen,  inhabiting  therein,  for  the  pur- 
pose of  raising  and  exciting  discontent  and  disaflfection  in  the  minds  of  the  liege  subjects 
of  our  said  lady  the  queen,  and  of  exciting  the  said  subjects  to  hatred  and  contempt  of  the 
government  anil  constitution  of  this  realm  as  by  law  established,  and  of  moving  the  said 
subjects  to  unlawful  and  seditious  opposition  and  resistance  to  the  said  government  and 
constitution  ;  and  being  so  met  and  assembled  together  for  the  purpose  aforesaid,  did  then 
and  there  unlawfully  and  tumultuously  ciMitinuc  together  with  the  said  other  ill-di.sposed 
persons  in  such  formidable  and  menacing  manner,  for  a  long  space  of  time,  to  wit,  for  the 
space  of  four  hours,  and  did  tiien  and  there,  during  all  sucli  time,  l)y  loud  and  seditious 
speeches, exclamations  and  cries,  raise  and  excite  such  di-content  and  disaffection  as  aforesaid^ 
and  did  tlurcby,  then  and  there,  cause  great  terror  and  alarm  to  divers  peaceable  and  well 
disposed  subjc-cts  of  our  said  lady  the  queen,  in  contempt,  <Sl,c.,  and  against,  &-c.  {Cok- 
elude  as  in  liook  I,  chap.  3;. 

(«)  R.  V.  .Shellard,  y  C.  &  P.  277. 

55 


650  OFFENCES  AGAINST  SOCIETY. 

Levying  ivar  against  the  State  of  Massachusetts.{b) 

That  A.  B.,  of,  &c.,  yeoman,  on,  &c.,  at,  &c.,  in  the  county  afore- 
said, he  (he  said  A.  B.  being  a  person  then  and  there  abiding  within 
the  state  and  commonwealth  aforesaid,  and  deriving  protection  from 
the  laws  of  the  same  and  then  and  there  owing  allegiance  and 
fidelity  to  the  said  state  and  commonwealtli,  and  being  then  and 
there  a  member  thereof,  not  regarding  the  duty  of  his  said  allegi- 
ance and  fidelity,  but  wickedly  devising  and  intending  the  peace  and 
tranquillity  of  the  said  state  and  commonwealth  to  disturb  and  destroy, 
on,  &c.,  at,  &.C.,  did  then  and  there  unlawfully,  maliciously  and  traitor- 
ously conspire  to  levy  war  agauist  the  said  state  and  commonwealth; 
and  to  fulfil  and  bring  to  effect  the  said  traitorous  compassings,  inten- 
tions and  conspiringsoi  him  the  said  A.  B.,he  the  said  A.  B.  afterwards, 
that  is  to  say,  on,  &e.,  at,  &c.,  with  a  great  multitude  of  other  persons, 
whose  names  are  to  the  jurors  aforesaid  as  yet  unknown,  to  the 
number  of  one  hundred  and  upwards,  armed  and  arrayed  in  a  war- 
like manner,  that  is  to  say,  with  guns,  swords  and  other  warlike 
weapons, as  well  offensive  as  defensive,  being  then  and  there  unlaw- 
fully, maliciously  and  traitorously  assembled  and  gathered  together, 
did  falsely,  maliciously  and  traitorously  assemble,  combine,  conspire 
and  join  themselves  together  against  the  said  state  and  common- 
wealth, and  then  and  there,  with  force  and  arms  did  wickedly, 
falsely,  maliciously  and  traitorously,  and  in  a  warlike  and  hostile 
manner,  array  and  dispose  themselves  against  the  said  state  and 
commonwealth, and  then  and  there, in  pursuanceof  such  their  malicious 
and  traitorous  intentions,  conspirings  and  purposes,  he  the  said  A.  B. 
and  the  said  other  persons  to  the  jurors  aforesaid  unknown,  so  as 
al'oresaid  traitorously  assembled,  armed  and  arrayed  in  manner  afore- 
said, most  wickedly,  maliciously  and  traitorously  did  ordain,  prepare 
and  levy  public  war  against  the  said  state  and  commonwealth,  con- 
trary to  the  duty  of  the  allegiance  of  the  said  A.  B.,  against,  &c.,  and 
contrary,  &c.     [Conclude  us  in  book  \,chup.  3). 

Conspiring  to  excite  an  insurrection  against  and  to  subvert  the  govern- 
ment of  the  State  of  Rhode  Islartd,  ivith  overt  act,  consisting  of  atteinpt 
to  usurp  the  place  of  member  of  the  legislature,  <!jfc.{c) 

That  A.  B.,  of,  &c.,  gentleman,  being  an  inhabitant  of  and  residing 
within  the  State  of  Rhode  Island  and  Providence  Plantations,  and 
under  the  protection  of  the  laws  of  said  State  of  Rhode  Island  and 
Providence  Plantations,  and  owing  allegiance  and  fidelity  to  the  said 
state,  not  weighing  the  duty  of  his  said  allegiance,  but  wickedly  and 
traitorously  devising  and  intending  the  peace  of  the  said  state  to  dis- 
turb and  stir  up,  move  and  excite  insurrection,  rebellion  and  war 


(h)  Davis'  Prcc.  253.  "This  indictment  is  drawn  under  the  statute  of  1777.  See  Ap- 
pendix to  MaHsacliusctts  Laws,  vol.  2,  p.  1046  ;  sec  2  C^iiit.  8.3,  84,  for  an  indictment 
againKt  Lord  (M-nifre  (Jordon,  for  exciting  riots  in  1780;  Cro.  C.  C.  189;  1  Trem.  P.  C.  1." 

(c)  T liis  is  the  indictment  used  in  the  trials  arising  from  tlie  Dorr  insurrection. 


TREASO^.  051 

against  the  said  state,  and  to  subvert  and  alter  the  legislative  rule 
and  government  of  the  said  state,  and  to  usurp  the  sovereign  power 
thereof,  and  to  set  up  and  establish  a  certain  usurped  and  pretended 
government  in  the  place  of  the  true  and  rightful  government  of  the 
said  state,  on,  &c.,  at,  &c.,  maliciously  and  traitorously  with  force 
and  arms  did,  with  divers  other  false  traitors,  whose  names  are  un- 
known to  the  said  jurors,  conspire,  compass,  imagine  and  intend  to 
stir  up,  move  and  excite  insurrection,  rebellion  and  war  against  the 
said  state,  and  to  subvert  and  alter  the  legislature,  rule  and  govern- 
ment of  the  said  state,  and  to  usurp  the  sovereign  power  of  the  said 
state,  and  to  set  up  and  establish  a  certain  usurped  and  pretended 
government  in  the  place  and  stead  of  the  true,  lawful  and  righttul 
government  of  the  said  state  ;  and  to  fulfil,  perfect  and  bring  to  effect 
his  most  evil  and  wicked  treason  and  treasonable  compassings  and 
imaginations  aforesaid,  he  the  said  A.  B.,  did  on,  &c.,  with  force  and 
arms  at,  &c.,  within  the  territorial  limits  of  the  said  State  of  Rhode 
Island  and  Providence  Plantations,  as  the  same  are  now  actually- 
held  and  enjoyed,  not  being  duly  elected  thereto  according  to  the 
laws  of  said  state,  and  under  a  pretended  constitution  of  government 
for  said  state,  maliciously  and  traitorously  assume  to  exercise  the 
legislative  functions  of  member  of  the  House  of  Representatives 
from  the  said  City  of  Providence,  in  a  pretended  general  assembly 
of  said  state,  then  and  there  held,  contrary  to  the  duty  of  his  said 
allegiance  and  fidelity,  against,  &c.,  and  against,  «SiC.  {^Conclude  as 
in  book  1,  chap.  3). 
Second  count. 

{Same  as  first,  omitting  ^'ioxce  and  arms,"  doivn  to  "constitu- 
tion of  government  for  said  state,"  a7id  then  insert) :  And  being 
with  divers  other  false  traitors,  to  the  jurors  aforesaid  unknown,  then 
and  there  assembled  and  met  together,  as  a  pretended  general  as- 
sembly of  said  state,  did  maliciously  and  traitorously  assume  to  exer- 
cise the  legislative  functions  of  a  member  of  the  House  of  Represen- 
tatives from  said  City  of  Providence,  in  said  pretended  general 
assembly  of  said  state  then  and  there  held,  contrary  to  the  duty  of 
his  said  allegiance  and  fidelity,  against,  &c.,  and  against,  &c.  (Con- 
clude as  in  book  1,  chap.  3). 
Third  count. 

(Same  as  first  down  to  "constitution  of  government  for  said 
state,"  and  then  insert) :  And  being  with  divers  other  false  traitors, 
to  the  jurors  aforesaid  as  yet  unknown,  theu  and  there  assembled 
and  met  together,  as  a  general  assembly  for  said  slate,  did  then  and 
there  maliciously  and  traitorously  assume  to  exercise  the  legislative 
fimctions  of  a  member  of  the  House  of  Representatives  from  the  said 
City  of  Providence,  in  the  said  pretended  general  assembly  of  said 
state,  and  as  such  member  did  then  and  there  vote  for  the  passage 
of  divers  pretended  acts  and  laws  for  the  said  state,  contrary  to  the 
duty  of  his  said  allegiance  and  fidelity,  against,  &c.,  and  against,  &c. 
(Conclude  as  in  book  1,  chap.  3). 


G52 


OFFEVCES  AGAINST  SOCIETY. 


Tmason  against  a  state  before  the  federal  constitution.    Overt  act,  taking 
a  commission  from  the  British  government  in  \llS.{d) 

That  A,  C,  late  of,  &c.,  carpenter,  being  an  inhabitant  of  and  be- 
longing to  and  residing  within  the  State  of  P.,  and  under  the  protec- 
tion of  its  laws,  and  owing  allegiance  to  the  same  state,  as  a  false  trai- 
tor against  the  same,  not  having  the  fear  of  God  before  his  eyes  but 
being  moved  and  seduced  by  the  instigation  of  the  devil,  the  fidelity 
which  to  the  same  state  he  owed  wholly  withdrawing  and  with  all 
his  might  intending  the  peace  and  tranquillity  of  this  commonwealth 
of  P.  to  disturb,  and  war  and  rebellion  against  the  same  to  raise  and 
move,  and  the  government  and  independency  thereof  as  by  law  es- 
tablished, to  subvert,  and  to  raise  again  and  restore  the  government 
and  tyranny  of  the  king  of  G.  B.  within  the  same  commonwealth, 
on,  &c.,  and  at  divers  days  and  times,  as  well  before  as  after,  at,  &c., 
with  force  and  arms  did  falsely  and  traitorously  take  a  commission  or 
commissions  from  the  king,  &c.,  and  then  and  there  with  force  and 
arms  did  falsely  and  treacherously  also  take  a  commission  or  commis- 
sions from  Gen.  Sir  W.  H.,  then  and  there  acting  under  the  said  king, 
and  under  the  authority  of  the  same  king  of  G.  B.,  to  wit,  a  commis- 
sion to  watch  over  and  guard  the  gates  of  the  city  of  P.,  by  the  said 
Sir  W.  H.  erected  and  set  up  for  the  purpose  of  keeping  and  maintain- 
ing the  possession  of  the  said  city  and  of  shutting  and  excluding  the 
faithful  and  liege  inhabitants  and  subjects  of  this  state  of  the  U.  S., 
from  the  said  city,  and  then  and  there  also  maliciously  and  traitor- 
ously with  a  great  multitude  of  traitors  and  rebels  against  the  said 
commonwealth  (whose  names  are  as  yet  unknown  to  the  jurors), 
being  armed  and  arrayed  in  a  hostile  manner,  with  force  and  arms  did 
falsely  and  traitorously  assemble  and  join  himself  against  this  com- 
monwealth, and  then  and  there  with  force  and  arms  did  falsely  and 
traitorously  and  in  a  warlike  and  hostile  manner,  array  and  dispose 
himself  against  this  commonwealth,  and  then  and  there,  in  pursuance 
and  execution  of  such  his  wicked  and  traitorous  intentions  and  pur- 
poses aforesaid,  did  falsely  and  traitorously  prepare,  order,  wage  and 
levy  a  public  and  cruel  war  against  this  commonwealth,  then  and 
there  committing  and  perpetrating  a  miserable  and  cruel  slaughter  of 
and  amongst  the  faithful  and  liege  inhabitants  thereof,  and  then  and 
there  did  with  force  and  arms  falsely  and  traitorously  aid  and  assist  the 
king  of  G.  B.,  being  an  enemy  at  oi)en  war  against  this  state,  by  join- 
ing his  armies,  to  wit,  his  army  under  the  command  of  Gen.  Sir  W. 
H.,  then  actually  invading  this  state,  and  then  and  there  maliciously 
and  traitorously  (with  divers  other  traitors  to  the  jurors  aforesaid  un- 
known), with  force  and  arms  did  combine,  plot  and  conspire  to  betray 
this  state  and  the  U.  S.  of  A.  into  the  hands  and  power  of  the  king  of 
G.  B.,  being  a  foreign  enemy  to  this  state  and  to  the  U.  S.  of  A.,  at 
open  war  against  the  same,  and  then  and  there  did  with  force  and  arms 
maliciously  and  traitorously  give  and  send  intelligence  to  the  same 

{(l)  R.  ».  Robortfi,  1  Dali.  35.    Tlic  defendant  was  ecntcnccd  under  this  indictment  after 

a  8trii)T(rle  of  jrrcat  animation.      Tiie  form  of  tlie   indictment,  it  was  said  hy  llie  attoincy- 
{,'cnerai  in  aigunicnt,  was  similar  to  tliat  aj,rainst  iMieaa  IVl'])onald,  Fust.  5. 


TREASON.  653 

enemies  fbr  that  purpose,  against  the  duty  of  his  allegiance,  against, 
&c.,  and  against,  &.c.     [Conclude  us  in  book  1,  chap.  3). 

Misdemeanor  in  going  into  the  City  of  Philadelphia  while  in  possession 
of  the  British  army.{e) 

That  C.  M.  and  J.  M.,  all  late  of,  &,c.,  yeomen,  on,  &c.,  at,  &c.,  and 
within  the  jurisdiction  of  this  conrt,  did  and  each  of  them  did  go  and 
pass  througli  tlie  County  of  Philadelphia,  into  the  City  of  Philadel- 
phia, while  in  possession  of  the  British  army,  without  obtaining  leave 
in  writing  for  that  purpose  from  congress,  trom  the  conmiander  in  chief 
of  the  armies  of  the  United  States  of  America  or  of  the  executive 
council  of  this  commonwealth,  contrary,  &c.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

Enticing  United  States  soldiers  to  desert. 

That  A.B,,  late  of,  &c.,  in  the  district  and  circuit  aforesaid,  heretofore, 
to  wit,  on,  &c.,  in,  &c.,  with  force  and  arms  at,  &c.,  in  the  district  and 
circuit  aforesaid,  and  within  the  jurisdiction  of  this  court,  unlawfully, 
knowingly  and  advisedly  did  procure  and  entice  C.  D.,  E.  F.,  &c.  (he 
(or  they)  the  said  then  and  there  being  a  soldier  (or  soldiers)  in 

the  service  of  the  United  States  of  America  aforesaid),  to  desert  from 
his  (or  their)  service,  duty  and  allegiance  to  the  said  United  States, 
he  the  said  A.  B.  at  the  time  he  so  procured  and  enticed  the  said  C. 
D.,  E.  F.,  &:c.,  to  desert  as  aforesaid,  well  knowing  that  the  said  C.  D., 
E.  F.,  &c.,  was  (or  were)  then  and  there  a  soldier  (or  soldiers)  in  the 
service  of  the  said  United  States,  against,  &c.,  and  against,  &c.  {Con- 
clude as  in  book  1,  chap.  3). 

{For  final  count,  see  p.  17,  97  7i,  123  n). 

Against  a  deserter  and  the  person  harbouring  him.{f) 

Tiiat  on,  &.C.,  at,  &c.,  a  certain  J.  M.  was  a  soldier  enlisted  in  the 
regiment  commanded  by  the  Compte  du  Ponts,  in  the  service  of  the 
king  of  France,  the  illustrious  ally  of  these  United  States,  and  then 
co-operating  with  the  American  troops  against  the  king  of  Great  Bri- 
tain, at  open  war  against  these  said  states,  and  so  being  enlisted,  after- 
wards, to  wit,  on  the  same  day  and  year  aforesaid,  at  the  county 
aforesaid,  did  desert  from  the  regiment  aforesaid;  and  the  jurors  afore- 
said do  further  present,  that  J,  C,  late  of,  &.C.,  yeoman,  not  being  igno- 
rant of  the  premises,  but  well  knowing  the  same  aforesaid,  to  wit,  on 
the  day  and  year  aforesaid,  at,  &c.,  unlawfully  and  for  wicked  gain 
sake,  did  harbour,  receive,  comfort  and  conceal  him  the  said  J.  M., 
then  and  there  well  knowing  the  said  J.  JNI.,  so  as  aforesaid,  to  have 
deserted  from  the  regiment  and  armies  aforesaid,  to  the  evil  example 
of  all  others  in  the  like  cases  ofiending,  and  against,  &c.  {Conclude 
as  in  book  1,  chap.  3). 

<.<^)  I^-     ,    , 

(/)  This  indiclment  was  prepared  by  Mr.  Biud'orH  in  Pennsylvania  before  the  adoplii.n 
of  the  federal  constitution. 

55* 


654  OFFEiVCES  AGAINST  SOCIEXy. 

Supplyivg  iinuholesome  bread  to  prisoners  of  war. {g) 

That  A.  13.,  late  of,  &c.,  on,  &c.,  at,  &c.,  knowingly,  wilfully,  de- 
ceitfully and  maliciously  did  provide,  furnish  and  deliver  to  and  for 
eight  hundred  French  prisoners  of  war,  whose  names  to  the  said  jurors 
are  yet  unknown,  and  there  being  under  the  protection  of  the  king, 
confined  in  a  certain  hospital  called  Eastwood  Hospital,  in  the  parish 
and  county  aforesaid,  divers  large  quantities,  to  wit,  five  hundred 
pounds  weight  of  bread,  to  be  eaten  as  food  by  the  said  French  prison- 
ers of  war,  such  bread  being  then  and  there  made  and  baked  in  an 
unwholesome  and  insufficient  manner,  and  then  and  there  being  made 
of  and  containing  dirt,  filth  and  other  pernicious  and  unwholesome 
ingredients  not  fit  to  be  eaten  by  man,  he  the  said  A.  B.  then  and 
there  well  knowing  the  said  bread  to  be  baked  in  an  unwholesome 
and  insufficient  manner,  and  to  be  made  of  and  to  contain  dirt,  filth 
and  other  pernicious  and  unwholesome  materials  and  ingredients  not 
fit  to  be  eaten  as  aforesaid,  whereby  the  said  prisoners  of  war  did 
then  and  there  eat  of  the  said  bread,  and  thereby  then  and  there  be- 
came distempered  in  their  bodies,  and  injured  and  endangered  in  their 
healths,  to  the  great  damage  of  the  said  prisoners  of  war,  to  the  great 
discredit  of  our  said  lord  the  king,  to  the  evil  example,  &c.,  and 
against,  &.c.     {Conclude  as  in  book  1,  chap.  3).^ 

{g)  Stark.  C.  P.  466. 


BOOK  THE   SIXTH 


PLEAS. 


J\fot  guilhj  in  case  of  treason  or  felony. (a) 

And  being  immediately  asked  how  he  will  acquit  himself  of  the 
premises,  {in  case  of  felony,  or  of  the  treasons,  in  case  of  treason), 
above  laid  to  his  charge,  says  that  he  is  not  guilty  thereof,  and 
thereof  for  good  and  for  ill  he  puts  himself  upon  the  country. (6) 

Not  guilty  in  misdemeanors,  <^c.,  where  the  defendant  may  plead  by 
attorney. 

And  the  said  J.  S.  by  A.  B.  his  attorney,  comes  into  court  here, 
and  having  heard  the  same  indictment  {or  information)  read,  says 
that  he  is  not  guilty  of  the  said  premises  in  the  said  indictment  {or 
information),  above  specified  and  charged  upon  him;  and  of  this  the 
said  J.  S.  puts  himself  upon  the  country,  &c. 

Similiter  generally. 

And  J.  K.  K.,  Esq.,  attorney-general  of  the  said  state  {or  common- 
wealth), who  prosecutes  for  the  said  state  {or  commonwealth)  in  this 
behalf,  does  the  like. 

Plea  that  the  defendant  has  no  addition.{c) 

And  the  said  A.  B.  comes  in  his  proper  person,  and  having  heard 
the  said  indictment  read,  says  that  he  at  the  time  of  the  taking  of  the 
said  indictment,  and  long  before,  was  and  yet  is  a  yeoman ;  and  that 
the  said  indictment  does  not  contain  an  addition  of  the  said  estate  of 

(a)  Stark.  C.  P.  472. 

(b)  The  English  practice  is,  that  in  cases  of  treason  and  felony  no  issue  is  joined  with 
the  prisoner  on  bciialf  of  the  erown.  lb. 

(c)  Stark.  C.  P.  474.  Mr.  Starkie  remarks  that  as  tlie  defect  is  apparent  on  the  record, 
tlie  objection  may  be  taken  on  a  motion  to  quash;  and  this,  which  is  the  obvious  course, 
was  taken  in  the  Oy.  and  Ter.  of  Phil,  in  184S,  in  Com.  v.  Vickers,  by  Kelley  J.;  see  also 
U.v.  Thomas,  3D.  &  R.  621. 


656  PLEA  OF  MISNOMER,  &C. 

t  he  said  A.  B.,  nor  of  any  estate,  degree  or  mystery  of  the  said  A.  B. ; 
and  tliis  he  is  ready  to  verify;  wherefore,  for  want  of  tlie  addition  of 
the  estate,  degree  or  mystery  of  the  said  A.  B.,  in  the  said  indictment, 
lie  prays  judgment  of  the  said  indictment,  and  that  the  same  may  be 
quashed. 

Plea  of  misnomer. {d) 

And  J.  L.,  who  is  indicted  by  the  name  of  G.  L.,  in  his  own  proper 
person  cometh  into  court  here,  and  having  heard  the  said  indictment 
read,  says  that  he  was  baptized  by  the  name  of  J.,  to  wit,  at  the 
jmrish  aforesaid  in  the  county  aforesaid,  and  by  the  Christian  name 
of  J.  lias  always  since  his  baptizm  hitherto  been  called  or  known; 
without  this,  that  he  the  said  J.  L.  now  is  or  at  any  time  hitherto 
hath  been  called  or  known  by  the  Christian  name  of  G.,  as  by  the 
said  indictment  is  supposed;  and  this  he  thesaidJ.  L.  is  ready  to 
verify;  wherefore  he  prays  judgment  of  the  said  indictment,  and  that 
the  same  may  be  quashed,  &c. 

Replication  to  the  above  plea.{e) 

^  And  hereupon  J.  N., Esq.,  attorney-general  of  the  said  state,  who  pro- 
secutes for  the  said  state  in  this  behalf,  says  that  the  said  indictment, 
by  reason  of  anything  by  the  said  J.  L.  in  his  said  plea  above  alleged, 
ought  not  to  be  quashed ;  because  he  says  that  the  said  J.  L.  long 
before  and  at  the  tiiiie  of  the  preferring  of  the  said  indictment,  was 
and  still  is  known  as  well  by  the  name  of  G.  L.  as  by  the  name  of 
J.  L.,  to  wit,  at  the  parish  aforesaid  in  the  county  aforesaid ;  and  this 
he  the  said  J.  N.  prays  may  be  inquired  of  the  country,  &c. 

Plea  of  a  ivrong  addition.(f) 

And  the  said  A.  B.,  who  in  and  by  Jthe  said  indictment  is  called  by 
the  name  and  addition,  "  A.  B.,  late  of  the  parish  of  K.  in  the  County 
of  M.,  yeoman,"  in  his  own  person  comes,  and  having  heard  the  said 
indictment  read,  says  that  at  the  time  of  the  taking  the  said  indict- 
ment, and  long  before,  he  the  said  A.  B,  was  and  ever  since  hath 
been  and  still  is  inliabiting,  commorant  and  resident  in  the  parish  of 
St.  James  in  the  liberty  of  Westminster  in  the  said  County  of  M. ; 
without  this,  that  he  the  said  A.  B.  now  is  or  at  the  taking  of  the 
.said  indictment,  or  at  any  time  before,  was  inhabiting,  resident  or 
commorant  at  the  parish  of  K.  in  the  said  County  of  M.;  and  this 
he  is  ready  to  verify;  wherefore  and  because  he  the  said  A.  B.  is  not 
called  in  the  said  indictment  ''A.  B.,  late  of  the  parish  of  St.  James 
ill  the  liberty  of  Westminster,"  he  the  said  A.  15.  prays  judgment  of 
the  said  indictment,  and  that  the  same  may  be  quashed. 

id)  Arch.  C.  P.  90  ;  Stark.  C.  P.  47.3.  (r)  Arch.  C.  P.  100. 

(/)  Stark.  C.  P.  473.  j\  pica  of  misnomer  should  coimncnce  thus,  "  Whereupon  cometh 
R.  W.  who  is  indicted  by  the  name  of  J.  VV."  and  if  lie  should  say  "the  said  J.  VV.,"  he 
would  he  concluded;  Stark.  C.  P.  473;  2  Hale  17.5. 

It  is  necessary  under  the  stat.  4  6l  r>  Ann,  c.  H),  s.  II,  to  verify  the  truth  of  the  plea 
by  affidavit,  or  to  show  some  |>robahlc  matter  to  induce  the  court  to  believe  tiiut  such  plea 
is  true.     1"he  jilea  should  be  sijfued  by  counsel ;  Stark.  C.  P.  473. 


PLEAS  TO  THE  JURISDICTION',  (ScC.  657 

Plea  to  the  jurisdiction.{g) 

And  the  said  J.  S.  in  ills  own  proper  person  cometh  into  court  hero, 
and  having  heard  the  said  indictment  read,  says  that  the  said  court 
liere  ought  not  to  take  cognizance  of  the  (trespass  and  assault)  in  tlie 
said  indictment  above  specified  ;  because,  protesting  that  he  is  not 
guihy  of  the  same,  nevertheless  the  said  J.  S.  says  i\\d.\,^c.,  {so proceed- 
ing to  state  the  matter  of  the  plea.  See  the  precedents,  I  TVent. 
10-18;  4  TFent.  63.  Conclude  thus):  And  this  he  the  said  J.  S.  is 
ready  to  verify ;  wherefore  he  prays  judgment  if  the  said  court  now 
here  will  or  ought  to  take  cognizance  of  the  indictment  aforesaid ; 
and  that  by  the  court  here  lie  may  be  dismissed  or  discharged,  &.c. 

Replication  to  the  above  plea.{h)  ■ 

And  hereupon  J.  N.,  attorney-general,  &c.,  who  prosecutes  for  the 
said  state  in  this  behalf,  says  that  notwithstanding  anything  by  the 
said  J.  S.  above  in  pleading  alleged,  this  court  ought  not  to  be  pre- 
cluded from  taking  cognizance  of  the  indictment  aforesaid  ;  because 
he  says  that,  &:c,,  {stating  the  inatter  of  the  replication).  And  this 
he  the  said  J.  N.  prays  may  be  inquired  of  by  the  country,  &c.  {Or 
if  it  conclude  with  a  verification,  then  thus) :  And  this  he  the  said 
J.  N.  is  ready  to  verify ;  wherefore  he  prays  judgment,  and  that  the 
said  J.  S.  may  answer  to  the  said  indictment. 


Special  pleas  generally.{i) 

And  the  said  J.  S.  in  his  own  proper  person  cometh  into  court  here, 
and  having  heard  the  said  indictment  {or  information)  read,  says, 
that  the  said  state  ought  not  further  to  prosecute  the  said  indictment 
against  him  the  said  J.  S. ;  because  he  says  that,  &c.,  {so  proceeding 
to  state  the  matter  of  the  plea,  and  concluding  thus) :  And  this  he 
the  said  J.  S.  is  ready  to  verify;  wherefore  he  prays  judgment,  and 
that  by  the  court  here  he  may  be  dismissed  and  discharged  from  the 
said  premises  in  the  said  indictftient  above  specified. 

Replication. {]) 

And  hereupon  J.  N.,  attorney-general,  &c.,  who  prosecutes  for  the 
said  state  in  this  behalf,  saj's  that  by  reason  of  anything  in  the  said 
plea  of  the  said  J.  S.  above  pleaded  in  bar  alleged,  the  said  state 
ought  not  to  be  precluded  from  prosecuting  the  said  indictment 
against  the  said  J.  S. ;  because  he  says  that,  &c.,  {so  proceeding 
to  state  the  matter  of  the  replication,  and  conclude  thus):  And  this 
he  the  said  J.  N.  prays  may  be  inquired  of  by  the  country.  {Or  if 
it  conclude  with  a  verification,  then  thus)  :  And  this  he  the  said  J. 
N.  is  ready  to  verify ;  wherefore  he  prays  judgment,  and  that  the  said 
J.  S.  may  be  convicted  of  the  premises  in  the  said  indictment  above 
specified. 

ig)  Arch.  C.  P.  98.  (A)  lb.  99.  (i)  Ih.  105.  (;)  Ih. 


"^°  PLEA  OF  AUTREFOIS  ACQUIT. 

Rejoinder. {k) 

And  the  said  J.  S.,  as  to  the  said  rephcation  of  the  said  J.  N.  to  the 
said  plea  by  him  the  said  J.  S.  pleaded,  savs  that  the  said  state,  by  reason 
of  anything  by  the  said  J.  N.  in  that  rephcation  alleged,  ought  not  fur- 
ther to  prosecute  the  said  indictment  against  him  the  said  J.  S. ;  be- 
cause he  saith  that,  &c.,  {so  proceeding  to  state  the  matter  of  the 
rejoinder,  and  concluding  thus) :  And  of  this  he  the  said  S.  puts 
huiiself  upon  the  country.  {Or  if  it  be  necessary  to  conclude  with 
a  verification,  the  conclusion  may  be  in  the  same  form  as  in  a 
J)  lea). 

Plea  of  autrefois  acquit.{I) 

And  the  said  William  Sheen  being  brought  to  the  bar  of  this  court, 
and  having  heard  the  said  indictment  read  and  the  matters  therein 

(k)  Arch.  C.  P.  106. 

(/)  R.  V.  Sheen,  2  C.  &  P.  634.  As  this  plea,  when  well  pleaded,  is  a  rarity,  the  whole 
proceeding's  on  it  are  appended. 

"  R.  N.  Cresswell  for  the  prisoner  then  said,  'And  the  said  William  Sheen  the  younger 
dotii  the  like.' 

"  The  prisoner's  counsel  asked  if  they  mio-ht  add  to  this  plea  that  the  prisoner  was  also 
acquitted  on  the  coroner's  inquisition,  in  which  the  deceased  was  described  as  Charles 
William  Sheen. (a) 

"  Burroug-h  J. :  If  the  prisoner  by  his  plea  insists  on  two  records,  his  plea  would  be 
double;  but  if  in  the  course  of  the  case  it  shall  appear  that  he  ought  to  have  pleaded  his 
acquittal  on  the  inquisition,  I  will  take  care  that  be  shall  not  be  prejudiced.  The  court 
awarded  a  venire  returnable  instanter.  And  the  sherift' having  made  his  return  forthwith, 
and  the  jury  having  been  sworn — 

"  R.  N.  Cresswell  for  the  prisoner  opened  his  case  to  the  jury  in  support  of  the  plea,  and 
put  in  an  examined  copy  of  the  registef  of  baptizmsof  the  parish  of  St.  George  the  Martyr, 
Southwurk,  in  which  the  baptizm  of  the  deceased  was  entered '  Charles  William,  the  son  of 
Lydia  Beadle,'  &c. 

"  A  witness  was  called,  who  proved  the  identity  of  the  child,  whose  mother  was  an  un- 
married woman  named  Lydia  Beadle,  whom  the  prisoner  had  married  after  the  birth  of 
the  deceased.  This  witness  stated  that  the  deceased  infant  was  always  called  William  or 
Billy,  but  that  slio  should  have  known  him  by  the  name  of  Charles  William  Beadle,  and 
if  any  one  had  inquired  for  him  by  that  name,  she  would  have  known  who  was  meant. 
And  the  prisoner's  fithcr  stated  that  the  child's  name  Was  Charles  William  Sheen,  but  that 
he  had  never  heard  him  called  so. 

"Andrews  Sergt,  addressed  the  jury  on  the  part  of  the  prosecution.  He  cited  the  cases 
of  Rex  V.  Clarke,(i)  and  culled  two  witnesses,  one  of  whom  had  been  told  by  the  mother  of 
the  deceased  that  his  name  was  William,  and  the  other  had  never  heard  the  deceased  called 
either,  or  spoken  of  by  any  name  at  all. 

"  Clarkson  for  the  prisoner  rc|)lied.  Burrough  J,  (in  summing  up) :  The  question  on 
this  issue  is,  whether  the  deceased  was  as  welf  known  by  the  riame  of  Charles  William 
Beadle,  as  by  any  of  the  names  and  descriptions  in  the  present  indictment,  and  I  ought  to 
say,  that  if  the  prisoner  could  have  been  convicl(5d  on  the  former  indictment,  he  must  be 
acquitted  now.  And  whether  at  the  former  trial  the  proper  evidence  was  adduced  before 
the  jury  or  not  is  immaterial,  for  if  by  ,iny  possible  evidence  that  could  have  been  pro- 
duced, he  could  have  been  convicted  on  that  indictinent.  He  is  now  entitled  to  be  acquitted. 

"  The  first  evidence  we  have  is  the  register,  and,  looking  at  that,  would  not  every  one 
have  called  the  child  Clharles  William  Beadle  ?  and  it  is  proved  by  one  of  the  witnesses  that 
she  would  have  known  him  by  that  name.  It  cannot  be  necessary  that  all  the  world  should 
know  the  child  by  that  name,  because  children  of  so  tender  an  age  are  hardly  known  at  all 
and  are  generally  called  by  a  C-liristian  name  only.  If,  however,  you  should  think  that  the 
name  of  the  deceased  was  ("harles  William  Slieen,  I  wish  you  would  inform  me  of  it  by  your 
verdict,  because  it  is  agreed  that  as  that  is  the  name  in  tlie  coroner's  inquisition,  the  pri- 
t^orier  should  derive  the  same  advantage  from  the  course  he  has  taken,  as  if  he  hid  pleaded 
his  acipiittal  in  that  incpiisition  ;  my  brother  Littlcdale  suggests  to  me,  that  if  a  legacy  had 
been   left  to  this  child  by  the  name   of  Charles  William    Beadle,  he   would  have   tulien  it 


PLEA  OF  AUTREFOIS  ACQUIT.  659 

contained,  says  that  he  ought  not  to  be  put  to  answer  the  said  indict- 
ment, lie  having  been  heretofore  in  due  manner  of  law  acquitted  of 
the   premises  in   and    by  the   said  indictment  above   specified  and 
charged  upon  him;  and  for  plea  to  the  said  indictment  he  says  that 
heretofore,  to  wit,  at,  &c.,  {here  set  forth  the  caption  of  the  session 
verbatim),  he  the  said  William  Sheen  was  duly  arraigned  upon  a  cer- 
tain indictment  which  charged  him  the  said  William  Sheen  by  the 
name  and  desciiption  of  William  Sheen,  late,  &c.,  in  the  county  of 
labourer;  not  having  the  fear,  &c.,  {it  here  set  out  the  former 
indictment  verbatim),  to  which  said  last  mentioned  indictment  he 
did  then  and  there  plead  not  guilty,  and  thereupon  a  jury  then  and 
there  duly  summoned,  empanneled  and  sworn  to  try  the  said  issue 
so  joined  between  the  said  state  and  the  said  William  Sheen,  upon 
their  oaths  did  say,  that  the  said  William  Sheen  was  not  guilty  of  the 
said  felony  and  murder  by  the  said  indictment  supposed  and  laid  to 
his  charge ;  whereupon  it  was  then  and  there  considered  by  the  said 
court  that  the  said  William  Sheen  should  go  thereof  acquitted,  with- 
out day,  as  appears  by  the  records  of  the  said  proceedings  now  here 
remaining  in  court.     And  the  said  William  Sheen  avers  that  the  said 
William  Sheen  mentioned  in  the  former  indictment,  and  he  the  said 
William  Sheen  who  is  charged  by  this  present  indictment,  are  one 
and  the  same  person  and  not  divers  and  different  persons,  and  that 
the  said  infant  mentioned  in  the  said  first  indictment  and  the  male 
child  in  this  present  indictment  mentioned,  are  one  and  the  same 
male  child  and  not  divers  and  different  children  ;  and  the  said  William 
Sheen  further  avers  that  the  felony  and  murder  in  the  said  former 
mentioned  indictment  mentioned,  and  the  felony  and  murder  in  this 
present  indictment  mentioned,  are  one  and  the  same  felony  and  mur- 
der and  not  divers  and  different  felonies  and  murders.     And  the  said 
William  Sheen  further  avers  that  the  said  male  child  described  by  the 
name  of  Charles  William  Beadle  in  the  said  former  indictment  mention- 
ed, was  as  well  known  by  the  said  name  of  Charles  William  Beadle  as 
by  any  of  the  several  names  and  descriptions  of  Charles  William, 
William,  Billy,  Charles,  or  William  Sheen,  or  a  certain  male  child  or 
a  certain  male  bastard  child,  as  he  is  in  and  by  the  present  indictment 
described  ;  and  this  he  is  ready  to  verify  ;  wherefore  he  the  said  Wil- 
liam Sheen  prays  the  judgment  of  the  court  here,  if  he  ought  to  be 
put  further  to  answer  this  present  indictment ;  and  whether  the  said 
state  ought  further  to  prosecute  or  impeach  him  the  said  William 
Sheen  on  account  of  the  premises  in  this  present  indictment  con- 
tained; and  that  he  may  be  dismissed  the  court  and  go  witiiout  day. 


upon  this  evidence,  and  if  this  evidence  of  the  child's  name  had  been  gfiven  at  the  former  trial, 
I  tliink  the  prisoner  should  have  been  convicted.  The  case  of  Rex  v.  Clarke  has  been 
cited,  but  in  that  case  there  was  an  entire  absence  of  evidence  as  to  the  surname  of  the 
deceased.  If  you  think  that  in  the  present  case  the  name  of  the  deceased  was  eitlier 
Charles  William  Beadle  or  C'harles  William  Sheen,  or  if  you  think  that  he  was  known  at 
all  by  those  names  or  either  of  those  names,  you  oufrlit  to  tind  a  verdict  for  the  prisoner. 

"  The  jury  found,  that  the  deceased  was  as  well  known  by  the  name  of  Charles  William 
Beadle  as  by  any  of  the  other  names. 

"  Burrousrh  J.:  There  must  be  judjrment  for  the  prisoner.  We  are  obliged  to  Mr.  Cress- 
well  for  drawing  that  plea;  it  was  very  properly  done." 


600  PLEA  OF  AUTREFOIS  ACQUIT. 

RepUcatlon  to  same.(Il)     {To  be  made  ore  ienus). 

And  J.  K.,  Esq.,  who  for  the  said  state  prosecutes  on  this  behalf, 
says  that  the  said  state  ought  not  to  be  barred  from  further  prose- 
cuting the  said  indictment,  because  he  saith  that  the  said  William 
Sheen  was  not  heretofore  acquitted  of  the  premises  charged  in  and 
upon  him  by  this  present  indictment;  for  although  true  it  is  that  the 
said  William  Sheen  was  acquitted  upon  the  said  indictment  in  this 
said  plea  mentioned,  and  although  true  it  is  that  the  said  infant  in 
the  said  former  indictment  mentioned  and  the  male  child  in  this  pre- 
sent indictment  mentioned,  is  the  same  child  and  not  another  and  dif- 
ferent child,  yet  for  replication  in  this  behalf,  he  says  that  the  said 
male  child  was  not  known  as  well  by  the  name  of  Charles  William 
Beadle  as  by  any  or  either  of  the  several  names  by  which  lie  is 
named  in  the  present  indictment;  and  this  the  said  J.  K,,  Esq.,  on 
behalf  of  the  said  state  prays  may  be  inquired  of  by  the  country. 

Plea  that  defendant  icas  didij  charged,  examined  and  tried  for  the  mur- 
der of  the  deceased  before  a  court  legally  constituted,  and  upon  this 
trial  and  examination  was  duly  and  legally  acquitted  of  the  said  mur- 
der and  felony  irith  which  he  stood  charged,  and  was  adjudged  by  the 
court  not  guilty  thereof.{?n) 

And  the  said  S.  M.  for  plea  (by  leave  of  the  court),  saith  that  he 
ought  not  now  to  be  charged  with  the  murder  and  felony  aforesaid, 
charged  upon  him  in  the  indictment  aforesaid,  because  he  saith  that 
he  the  said  S.  M.,  by  the  name  and  description  of  S.  M.,  heretofore, 
to  wit,  at  a  court  of  aldermen  of  the  borough  of  Norfolk,  summoned 
according  to  law  for  the  examination  of  the  said  S.  M.,  for  the  murder 
and  felony  aforesaid,  and  held  on  the  thirty-first  day  of  May,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  eleven,  at  the  court 
house  of  the  borough  aforesaid,  before  W.  B.  L.,  mayor,  J.  N.,  re- 
corder, W.  v.,  L.  W.,  M.  K.,  J.  E.  H.,  R.  E.  L.  and  M.  K.  Jr.,  alder- 
men of  the  said  borough,  was  duly  charged,  examined  and  tried  for 
having  on  tiie  twenty-fifth  day  of  May,  one  thousand  eight  hundred 
and  eleven,  between  tlie  hoursof  six  and  eight  o'clock  of  the  morning 
of  that  day,  in  the  stone  house  of  L.  B.  in  the  said  borough  of  Norfolk, 
feloniously,  wilfully  and  of  his  malice  aforethought,  killed  and  mur- 
dered the  said  R.  B.,  who  was  then  and  there  in  the  peace  of  God  and 
of  the  commonwealth,  and  that  he  the  said  S.  M.  upon  this  trial  and 
examination  was  duly  and  legally  acquitted  by  the  said  court,  of  the 
said  murder  and  felony  with  which  he  was  then  and  there  so  charged, 
and  was  adjudged  by  the  said  court  not  to  be  guilty  thereof;  and  this 
he  the  said  S.  M.  is  ready  to  verify  and  prove  by  the  record  of  the 
said  borough  court  of  Norfolk.  And  the  said  S,  M.  further  saith,  that 
the  said  R,  B.  named  in  the  said  indictment,  and  the  said  R.  B.  named 
in  the  said  record  of  acquittal,  are  one  and  the  same,  and  not  ditlerent 

(11)  Where  on  the  record  the  offence  set  forth  in  the  first  indictment  is  siihstantiiilly  liie 
same  as  that  set  forth  in  the  second,  and  wlierc  tiicrc  is  no  averment  of  identity  of  oiiencc, 
'Itic  proper  course  is  to  demur. 

{m)  Tliis  plea  was  held  good  in  Com.  v.  Myers,  1  V'u.  Cases  24S>. 


PLEA  OF  AUTREFOIS  COX  VICT.  6G1 

persons ;  that  he  the  said  S.  M.  named  in  the  said  indictment,  and  the 
said  S.  M.  named  in  the  said  record  and  acqnittal  as  aforesaid  by  the 
said  corporation  conrt  of  the  felony  and  murder  aforesaid,  are  one 
and  the  same,  and  not  different  persons,  and  tiiat  the  felony  and  mur- 
der charged  upon  him  the  said  S.  M.  before  the  said  corporation  court, 
and  the  felony  and  murder  charged  upon  him  the  said  S.  M.  in  ihe 
indictment  aforesaid,  are  one  and  the  same,  and  not  different  felonies  ; 
and  this  he  is  ready  to  verify;  wherefore  since  he  the  said  S,  M.  hath 
already  been  heretofore  acquitted  of  the  felony  and  murder  of  the 
said  R.  B.  aforesaid,  he  prays  the  judgment  of  the  court  here,  if  he  the 
said  S.  M.  should  be  again  charged  with  the  same  felony  and  murder 
of  which  he  hath  once  already  at  another  time  been  acquitted. 

Autrefois  convict,  plea  of,  ichere  the  original  indictment  on  ichich  the 
defendant  was  convicted,  was  one  for  arson,  and  the  second  indict- 
ment was  for  murder  in  burning  a  house  whereby  one  J.  H.  was  killed, 

And  the  said  S.  C,  in  his  own  proper  person,  cometh  into  court 
here,  and  having  heard  the  said  indictment  read,  saith  that  the  said 
State  of  New  Jersey  ought  not  further  to  prosecute  the  said  indict- 
ment against  him,  the  said  S.  C,  because,  he  saith,  that  heretofore,  to 

(ji)  State  V.  Cooper,  1  Green.  375.  The  indictment  on  which  the  above  proceeding  took 
place  is  to  be  found  ante,  p.  54.  "  The  defendant,"  said  tiie  court,  "  lias  been  convicted 
of  the  crime  of  arson.  He  has  plead  that  conviction  in  bar  of  the  indictment  for  murder.  What 
effect  shall  that  plea  have  upon  this  prosecution  ?  If  I  am  right  in  supposing'  that  the  de- 
fendant cannot  be  convicted  and  punished  for  two  distinct  felonies,  growing  out  of  the  same 
identical  act,  and  where  one  is  a  necessary  ingredient  in  the  other,  and  the  state  has  select- 
ed and  prosecuted  one  to  conviction,  it  appears  to  present  a  proper  case  to  interpose  the 
benign  principle,  that  a  man  shall  not  be  twice  put  in  jeopardy  for  the  same  cause  in  favour 
of  the  life  of  the  defendant. 

"Judge  Blackstone  in  his  Commentaries,  says  that,  'a  conviction  of  manslaughter,  or  an 
appeal  on  an  indictment,  is  a  bar  even  in  another  appeal,  and  mucli  more  in  an  indictment 
of  murder,  for  tlie  fact  prosecuted  is  the  same  in  both,  though  the  offences  ditfL-r  in  colour- 
ing and  degree.'  This  is  well  established  ;  4  Coke,  45,  46;  2  flale  "246  ;  Arch.  5'2 ;  Fost. 
Cr.  Law,  329  ;  Hawk.  b.  2,  c.  36,  s.  10.  And  in  tlie  case  of  Robert  M.  Goodwin,  who  was 
indicted  for  manslaughter  and  subsequently  for  murder,  Colden  (mayor),  fully  recognizes 
the  same  principle,  where  he  says,  '  if  we  were  to  try  the  prisoner  on  the  indictment  for 
manslaughter,  unquestionably  we  should  put  an  end  to  the  ])rosecution  for  murder.' 

"  If  in  civil  cases,  the  law  abhors  a  multiplicity  of  suits,  it  is  yet  more  watcliful  in  crimi- 
nal cases,  that  the  crown  shall  not  oppress  the  subject,  or  the  government  the  citizen  by 
unnecessary  prosecutions.  Under  the  numerous  British  statutes  imposing  severe  penalties 
and  even  taking  away  the  benefit  of  clergy  from  larcenies  perpetrated  under  certain  speci- 
fied circumstances,  it  is  the  practice  to  indict  the  crime  with  all  its  aggravations  under  the 
statute,  and  if  the  aggravating  circumstances  are  not  proved,  to  convict  of  the  simple  lar- 
ceny only.  I  have  met  with  no  instance  of  an  attempt  on  the  part  of  the  crown,  afier  in- 
dicting; for  a  simple  larceny  and  establishing  that,  to  proceed  by  another  indictment,  to 
establish  the  higher  offence.  The  case  of  Rex  v.  Smith,  3  C.  &.  P.  412,  cited  in  14  Eng. 
C.  Law  Rep.  374,  and  the  Com.  c.  Cunningham,  13  Mass.  245,  are  authorities  against 
such  a  practice.  And  I  am  satisfifd  that' a  conviction  of  larceny  would  be  a  good  bar  to 
a  prosecution  for  burglary  and  stealing  the  same  goods,  whatever  might  be  its  effect  upon 
an  indictment  for  burglary  with  intent  to  steal;  as  to  which  see  7  S.  &.  R.491.  I  consider 
the  present  case  as  not  affected  by  those  where  the  first  indictment  was  insufficient,  and 
where  a  train  of  decisions  has  established  that  the  criminal  was  never  legally  in  jeopardy 
from  the  first  prosecution;  4  Coke  44,45;  Hawk.  b.  2,  c.  36,  s.  15;  1  Johns.  Rep.  77. 
There  is  no  defect  in  the  first  indictment;  it  is  a  case  where  the  state  has  thought  proper 
to  prosecute  the  offence  in  its  mildest  form,  and  it  is  better  that  the  residue  of  the  offence 
go  unpunished,  than  by  sustaining  a  second  indictment,  to  sanction  a  practice  which  might 
be  rendered  an  instrument  of  oppression  to  the  citizen." 
5Q 


C62  PLEA  OF  AUTERFOIS  CONVICT. 

wit,  at  a  Court  of  General  Quarter  Sessions  of  the  Peace,  holden  at 
Morristown,  in  and  for  the  County  of  Morris,  of  the  term  of  July,  A. 
D,,  &c.,  it  was  by  the  jurors  of  the  State  of  New  Jersey  for  the  body 
of  the  County  of  Morris,  upon  their  oaths  presented  "  that  {here  re- 
cite indictment),  then,  there  and  thereby  described  as  S.  C,  late  of 
the  township  of  Hanover,  in  the  County  of  Morris,  not  having  the 
fear  of  God  before  his  eyes,  but  being  moved  and  seduced  by  the  in- 
stigation of  the  devil,  on  the  fiftli  day  of  April,  A.  D.  one  thousand 
eight  hundred  and  thirty,  with  force  and  arms  at  the  township  afore- 
said in  the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
Court  of  General  Quarter  Sessions  of  the  peace,  wilfully  and  mali- 
ciously did  burn  a  certain  dwelling  house  of  one  R.  S.,  there  situate. 
And  the  jurors  aforesaid,  upon  their  oaths  aibresaid,  did  further  pre- 
sent, that  C.  C.  and  J.  V.  G.  late  of  the  township  of  Hanover  afore- 
said in  the  county  aforesaid,  before  the  said  arson  was  committed  in 
form  aforesaid,  to  wit,  on  the  twelfth  day  of  February,  in  the  year 
aforesaid,  with  force  and  arms  at  the  township  aforesaid,  in  the 
county  and  within  the  jurisdiction  aforesaid,  did  unlawfully,  wilfully 
and  maliciously  aid,  counsel  and  procure  the  said  S.  C.  to  commit  the 
said  arson  in  manner  and  form  aforesaid,  against  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace  of  the 
said  State  of  New  Jersey,  the  government  and  dignity  of  the  same." 

Which  said  indictment  is  endorsed  a  true  bill,  and  signed  by  D.  J. 
C,  Esq.,  as  foreman,  and  by  J.  W.  M.,  Esq.,  as  prosecutor  of  the 
pleas,  &c. 

And  the  said  S.  C,  in  his  own  proper  person  further  saith,  that  at 
a  Court  of  Oyer  and  Terminer  and  General  Gaol  Delivery,  holden  at 
Morristown,  in  and  for  the  County  of  Morris,  of  the  term  of  Septem- 
ber, A.  D.  one  thousand  eight  hundred  and  thirty,  present  the  Hon. 
G.  K.  D.,  justice,  and  J.  U.,  D.  T.,  J.  S.  and  S.  C,  Esqrs.,  judges, 
he,  the  said  S.  C,  together  with  C.  C.  and  J.  V.  G.,  were  charged 
on  the  above  recited  indictment  for  arson,  and  their  plea  to  the  same 
being  demanded,  they,  the  said  S.,  C.  and  J.  pleaded  thereto  not  guilty; 
whereupon,  the  said  court  remanded  them  the  said  S.,  C.  and  J.  to 
prison.  And  the  said  S.  in  his  own  proper  person  further  saith,  that 
afterwards,  to  wit,  on  Monday  the  fourth  day  of  October,  A.  D.  one 
thousand  eight  hundred  and  thirty,  before  the  said  Court  of  Oyer  and 
and  Terminer  and  General  Gaol  Delivery,  and  in  the  same  September 
term  of  said  court,  on  motion  of  J.  W.  M.,  Esq.,  prosecutor  of  the 
pleas  for  the  County  of  Morris,  the  said  court  ordered  on  the  trial  of 
the  said  S.,  C.  and  J.,  on  said  indictment  for  arson.  Whereupon,  the 
sheriff'  having  returned  a  panel,  the  following  persons  appeared  and 
were  sworn,  viz.  A.  C,  &c.  After  hearing  the  testimony,  and  a 
charge  from  the  court,  the  jury  retired  to  consider  of  their  verdict  with 
constable  S.  F.,  sworn  to  attend  them ;  after  some  time  the  said 
jury  returned  into  court  and  said  they  had  agreed  on  the  verdict, 
and  by  A.  C.  their  foreman,  said,  they  found  the  said  S.  C.  guilty  in 
manner  and  form  as  he  stood  charged,  and  as  to  C.  C.  and  J.  V.  G. 
not  guilty  in  manner  and  form  as  they  stood  charged,  and  so  said 
they  all,  as  by  the  record  thereof  more  fully  and  at  large  appears, 
which  said  judgment  still  remains  in  ilill  force  and  elfect,  and  not  in 
tiiu  least  reversed  or  made  void.     And  the  said  S.  C.  in  fact  saith,  that 


PLEA  OF  AUTREFOIS  CONVICT REPLICATION,  ctc,  TO  SAME.  Gf)'] 

he  the  said  S.  C,  and  the  said  S.  G.  so  indicted  and  convicted  as  lasi 
aforesaid,  are  one  and  the  same  person,  and  not  other  and  dirterent  per- 
sons, and  that  the  wilful  and  malicious  burning  a  certain  dwelling 
house  of  one  R.  S.  (as  in  the  indictment  for  arson  is  mentioned,  and 
on  which  he  has  been  so  as  aforesaid  convicted),  and  the  wilful  and 
malicious  burning  a  certain  dwelling  house  of  one  R.  S.,  whereby 
one  J.  H,  in  the  said  dwelling  house  then  and  there  being,  before,  at 
and  during  the  same  burning,  was  then  and  there  by  reason  and 
means  of  the  said  burning  so  committed  and  dona  by  the  said  S.  C, 
in  manner  aforesaid,  mortally  burned  and  killed,  as  described  in  the 
above  indictment  for  murder  against  him  (in  the  first  count  thereof), 
are  one  and  the  same  wilful  and  malicious  burning  of  the  dwelling 
house  of  the  said  R.  S,  and  not  other  and  different  burnings  or  arsons. 

And  the  said  S.  C.  further  in  fact  saith,  that  the  wilful  and  malicious 
burning  a  dwelling  house  of  one  R.S.,  of  which  he  the  said  S.  C. 
was  so  indicted  aud  convicted  as  aforesaid,  and  his  contriving  and 
intending  one  J.  H.  then  being  in  a  certain  dwelling  house  of  one  R. 
S.,  in  the  township  and  county  aforesaid,  feloniously,  wilfully  and  of 
his  malice  aforethought  to  burn,  kill  and  murder  and  his  wilfully  and 
maliciously  setting  fire  to  and  burning  the  said  dwelling  house,  the 
said  J.  H.,  then  and  there,  before,  at  and  during  the  said  burning 
being  in  the  said  dwelling  house,  and  that  he,  the  said  S.  C,  in  so  setting 
fire  to  and  burning  the  said  dwelling  house  as  aforesaid,  there  and 
then  feloniously,  wilfully  and  of  his  malice  aforethought, did  mortally 
burn  the  body  of  the  said  J.  H.,  by  means  of  which  said  mortally 
burning  of  the  body  of  the  said  J.  H.,  as  aforesaid,  he  the  said  J.  H. 
did  die,  of  which  he  is  now  indicted,  as  alleged  in  the  second  count  of 
said  indictment,  are  one  and  the  same  wilful  and  malicious  burnings 
of  the  dwelling  house  of  the  said  R.  S.,  and  not  other  and  different 
burnings  or  arsons. 

And  of  this  he  the  said  S.  C.  is  ready  to  verify  ;  wherefore  he  prays 
judgment,  and  that  by  the  court  here  lie  may  be  dismissed  and  dis- 
charged from  the  said  premises  in  the  present  indictment  specified; 
{here  follows  2jlea  of  not  guilty). 

Replication  to  said  plea. 

And  J.  W.  M.,  who  prosecutes  for  the  State  of  New  Jersey,  in  this 
behalf,  as  to  the  Said  plea  of  the  said  S.  C,  by  him  first  above  pleaded, 
saith,  that  the  same  and  the  matters  therein  contained  in  manner  and 
form  as  the  same  are  above  pleaded  and  set  forth,  are  not  suriicient 
in  law  to  bar  or  preclude  the  said  state  from  prosecuting  the  said  in- 
dictment against  him  the  said  S.  C,  and  that  the  said  state  is  not  bound 
by  the  law  of  the  court  to  answer  the  same,  and  this  he  the  said  J. 
W.  M.,  who  prosecutes  as  aforesaid,  is  ready  to  verify,  wherefore  : 

For  want  of  a  sufficient  plea  in  this  behalf,  he,  the  said  J.  W.  M., 
for  the  State  of  New  Jersey,  prays  judgment,  and  that  the  said  S.  C. 
may  be  convicted  of  the  premises  in  the  said  indictment  specified. 

Rejoinder  to  said  replication. 

And  the  said  S.  C.  saith,  that  his  said  plea  by  him  above  pleaded, 
and  the  matters  therein  contained,  in  manner  and  form  as  the  same 


664  PLEA  OF  ONCE   IN   JEOPARDV. 

are  above  pleaded  and  set  forth,  are  sufficient  in  law  to  bar  and  pre- 
clude the  said  State  of  New  Jersey  from  prosecuting  the  said  indict- 
ment against  him  the  said  S,  C,  and  the  said  S,  C.  is  ready  to  verify 
and  prove  the  same  as  the  said  court  here  shall  direct  and  award  ; 
wherefore,  inasmuch  as  the  said  J.  W.  M,  who  prosecutes  for  the  said 
State  of  New  Jersey,  hath  not  answered  the  said  plea,  nor  hitherto  in 
any  manner  denied  the  same,  the  said  S.  C.  prays  judgment,  and  that 
by  the  court  here  he  may  be  dismissed  and  discharged  from  the  said 
premises  in  the  said  indictment  specified. 

Plea  of  once  in  jeopardy. 

That  on  the  said  indictment  at  the  said  Court  of  Oyer  and  Termi- 
ner and  General  Gaol  Delivery,  on  Thursday  the  twelfth  of  April 
aforesaid,  the  said  defendant  in  due  form  of  law  was  arraigned  and 
pleaded  not  guilty  of  the  premises  contained  in  the  said  indictment, 
and  for  her  trial  put  herself  upon  God  and  her  country,  and  was  by 
the  said  commonwealth  in  due  form  of  law  placed  on  her  trial  be- 
fore a  jury  of  the  said  country.  And  the  said  J.  C.  further  says,  that 
on  the  twenty-first,  twenty-second  and  twenty-third  days  of  April 
aforesaid,  the  witnesses  were  examined  in  due  form  of  law  before  the 
said  court  and  jury  as  well  on  behalf  of  the  said  commonwealth  as 
her  the  said  defendant;  that  the  counsel  for  the  comn>onwealth  and 
the  defendant  then  addressed  the  court  and  jury  in  due  form  of  law ; 
that  on  the  evening  of  the  twenty-third  of  April  aforesaid  the  court 
charged  the  jury  relative  to  the  premises  contained  in  the  said  indict- 
ment as  set  forth,  and  that  the  said  jury  then  according  to  law  retired 
to  deliberate  on  their  verdict ;  that  on  Monday  the  twenty-fifth  day 
of  April  aforesaid,  at  ten  o'clock  in  the  forenoon  of  that  day,  the  said 
jury  came  into  the  said  court,  and  answered  to  their  names  and  de- 
clared that  they  had  not  agreed  upon  their  verdict,  and  that  they  did 
not  think  they  were  likely  to  agree  upon  their  verdict ;  that  two  of 
the  jury,  viz.  E.  F.  and  A.  H,,  then  and  there  stated  that  they  were 
unwell,  and  one  of  the  jury,  viz.  E.  F.,  then  and  there  declared  that 
if  he  were  much  longer  confined  in  his  present  state  of  privation  his 
life  would  be  endangered;  that  one  of  the  jury,  E.  F.,  being  duly 
sworn  before  the  said  court,  declared  tliat  he  was  seventy-six  years  of 
age,  that  the  health  of  him  the  said  E.  F.  was  greatly  impaired  by  an 
attack  of  illness  from  which  he  the  said  E.  F.  had  only  been  relieved 
about  a  month,  that  he  the  said  E.  F.,  from  his  peculiar  state  of  pri- 
vation and  suffering  was  so  ill  and  feeble  that  he  could  not  walk  into 
court  without  assistance,  and  that  he  the  said  E.  F.  firmly  believed 
that  if  he  should  be  compelled  to  continue  on  the  said  jury  any  fur- 
ther length  of  time  under  his  then  state  of  privation  and  restriction, 
the  life  of  him  the  said  E.  F.  would  be  in  danger.  And  A.  H., 
another  of  the  said  jury,  being  duly  affirmed  according  to  law,  de- 
clared that  he  was  then  quite  ill,  that  he  had  been  confined  all  the 
month  of  December  then  next  preceding,  with  bilious  fever;  that  the 
effects  of  this  attack  still  left  his  frame  debilitated,  and  that  he  firmly 
believed  that  his  health  would  be  in  danger  by  being  kept  longer  on 
tlie  jury  under  his  then  state  of  [)rivali()n  and  rcslriciion,  as  ordered 
by  tlie  court;  thai  the  jury  was  then  ordered  by  the  court  to  with- 


PLEA  01"  ONCE  IX  JEOPARDY.  665 

draw  to  their  rooQi  where  they  had  been  deUberating,  and  Dr.  J.  K., 
a  physician  of  great  respectability,  was  then  and  there  directed  by 
the  court  to  visit  the  said  jurors  wlio  alleged  that  they  were  sick; 
that  the  said  Dr.  J.  K.  did  so  visit  the  jurors  in  their  room,  in  the 
absence  of  the  defendant  and  her  counsel,  and  without  their  consent, 
and  returned  to  the  said  court,  and  being  then  for  the  first  time  sworn, 
did  depose  that  he  had  attended  the  said  E.  F.  about  a  month  pre- 
vious to  the  said  time,  the  said  E.  F.  having  then  a  disease  of  the 
brain,  and  that  the  life  of  the  said  E.  F.  would  in  the  opinion  of  the 
said  J.  K.  be  endangered  by  a  continuance  of  his  present  state  of 
privation  and  restriction,  as  it  might  produce  a  return  of  the  disease. 
And  the  said  Dr.  J.  K.  then  and  there  farther  deposed  as  his  opinion 
to  the  said  court,  that  the  life  of  the  said  A.  H.  was  not  in  immediate 
danger,  but  that  he  was  ill,  and  that  his  health  would  be  endangered 
if  he  continued  to  remain  in  his  present  state  of  privation  and  restric- 
tion. And  the  said  J.  C.  further  says,  that  at  half-past  twelve  o'clock 
in  the  afternoon  of  the  same  day,  the  said  court  ordered  the  said  jury 
to  be  brought  into  court,  and  the  said  jury  being  tlien  and  there  asked 
if  they  had  agreed  upon  their  verdict,  answered  that  they  had  not. 
And  the  said  court  then  and  there,  without  and  against  the  consent 
of  the  said  J.  C,  ordered  the  said  jury  to  be  dismissed,  the  said  court 
declaring  then  and  there  their  opinioti  that  a  case  of  necessity  for  the 
discharge  of  the  said  jury,  as  contemplated  by  the  Supreme  Court  of 
this  conunonwealth,  in  the  case  of  The  Commonwealth  v.  Cook,  had 
been  made  to  appear.  And  the  said  J.  C.  further  says,  that  during 
all  this  time,  viz.  from  Saturday  tiie  twenty-third  of  April,  from  half- 
})ast  ten  o'clock  in  the  evening  of  that  day,  until  Monday  the  twenty- 
fitlh  day  of  April,  at  half-past  twelve  o'clock  in  the  afternoon  of  that 
day,  the  said  jury  were  kept  by  order  of  the  said  court  witliout  meat 
or  drink,  but  had  the  use  of  fire  and  candles,  and  that  during  the  trial 
the  said  jury  were  allowed  to  eat  and  drink.  And  the  said  J.  C.  fur- 
ther says,  that  after  the  said  jury  had  been  without  meat  or  drink  for 
the  space  of  twenty-four  hoiu's,  the  said  court  then  and  there,  after 
asking  the  consent  of  the  commonwealth  and  the  defendant,  author- 
ized the  said  jury  to  take  some  refreshment,  if  a  majority  of  the  said 
jury  would  agree  to  the  same ;  but  that  a  majority  of  the  jury  would 
not  agree  to  the  taking  of  such  refreshment  at  that  time,  until  the 
verdict  was  agreed  upon ;  after  which  declaration  the  court  refused 
to  grant  permission  to  any  one  of  the  said  jury  to  take  any  food  or 
refreshment  whatever.  And  the  said  J.  C.  further  says,  that  during 
the  time  of  the  privations  and  restrictions  of  the  said  jury,  the  said 
defendant  prayed  the  said  court  that  the  said  jury  or  any  of  them 
might  take  food  and  refreshments;  and  after  the  declaration  of  the 
said  jurors  that  they  were  sick,  the  said  defendant  then  prayed  that 
the  said  sick  jurors  might  be  allowed  food  and  refreshment.  All 
which  said  praying  of  the  said  defendant  the  said  coiu't  then  and 
there  refused.  And  the  said  J.  C.  further  says,  that  he  the  said  J.  C. 
now  here  pleading  and  tlie  said  J.  C.  in  the  said  indictment  last  men- 
tioned, is  the  same  identical  person,  &c.(o) 

(o)  The  autlioritics  bearing  on  this  species  of  plea  aie  collected  in  \\\\.  C.  L.  1-16,  et 

56^ 


666  PLEA  AS  TO  QUALIFICATIONS  OF  GRAND  JURORS. 

Plea  that  six  of  the  grand  jurors  by  whom  the  bill  was  found  ivere  not 
duly  quaUfied.{p) 

That  J.  N.  C,  R.  M.  C.  S.,  H.  B.,  J.  F.,  T.  J.  H.  and  J.  B.,  six  of 

the  grand  jurors  by  whom  the  said  indictment  was  found  and  returned 
into  the  said  court,  at  the  said  April  term  thereof,  were  not  ail  of  them 
the  above  named  six  grand  jurors,  nor  any  one  of  them,  at  the  time 
they  so  acted  and  at  the  time  the  said  indictment  was  found  and 
returned,  duly  and  legally  quahfied  to  act  as  such  grand  jurors;  in 
this  they  the  said  six  grand  jurors,  nor  any  one  of  them,  had  not 
then  and  there  been  drawn  by  the  clerk  and  sheriff  of  the  County  of 
Warren  aforesaid,  either  at  a  regular  term  of  the  said  Circuit  Court, 
(next  preceding  the  said  April  term  of  the  said  Circuit  Court),  there 
in  open  court,  or  by  the  said  clerk  and  sheriff  and  in  the  presence  of 
the  judge  of  probate  of  the  County  of  Warren  aforesaid,  sixty  days 
next  before  the  said  April  term  of  tlie  said  Circuit  Court  of  the  County 
of  Warren  aforesaid,  as  jurors  liable  to  serve  out  for  the  first  week  of 
the  aforesaid  CircuitCourt,  at  the  said  April  term  thereof,  then  and  there 
from  a  list  of  the  names  of  all  the  freeholders  (being  citizens  of  the 
United  States),  and  householders  of  the  County  of  VVarren  aforesaid, 
as  liable  to  serve  as  jurors  in  the  Circuit  Court  of  the  County  of 
Warren  aforesaid,  as  returned  either  in  term  tune  of  the  said  Circuit 
Court  or  to  the  clerk  thereof  at  his  office  in  vacation,  by  the  assessor 
of  taxes  of  the  County  of  Warren  aforesaid ;  nor  were  all  of  them 
the  above  named  six  grand  jurors,  nor  was  any  one  of  them,  then 
and  there  summoned  as  persons  liable  to.  serve  as  jurors  for  the  first 
week  of  the  said  April  term  of  the  said  Circuit  Court  of  Warren 
county  aforesaid,  then  and  there  by  virtue  of  a  special  writ  of  venire 
facias,  then  and  there  awarded  by  the  said  Circuit  Court  at  the  said 
April  term  thereof,  directing  the  said  sheriff  of  the  said  County  of 
Warren  to  summon  persons  there  liable  to  serve  as  jurors  at  the  said 
April  term  of  the  said  Circuit  Court,  for  the  first  week  thereof;  nor 
were  all  or  any  of  the  above  named  six  grand  jurors  then  and  there 
summoned  as  tales  jurors  by  the  said  sheriff,  as  liable  to  serve  as  such 
jurors  for  the  first  week  of  the  said  term  of  said  court,  then  and  there 
by  virtue  of  an  order  of  said  court ;  nor  had  all  and  every  one  of 
the  jurors  of  the  regular  panel  of  the  jurors  summoned  and  in  attend- 
ance at  the  said  term  of  the  said  court  for  the  first  week  thereof, 
affailed  in  their  attendance  at  the  said  April  term  of  said  court  for 
the  first  week  thereof;  nor  had  the  regular  panel  of  the  jurors  sum- 
moned and  in  attendance  upoti  the  said  court  at  the  said  term  thereof, 
as  liable  to  serve  as  jurors  for  the  first  week,  been  gone  through  with, 
then  and  there  to  constitute  a  grand  jury  to  serve  at  the  said  term  of 

seq.;  and  it  was  there  shown  tliat  whilo  the  federal  courts  and  the  courts  of  Massachu- 
setts, New  York,  Mississippi  and  Kentucky  held  that  the  dischiirge  of  a  jury  in  a  previous 
trial  for  a  capital  oHence  was  no  bar  to  sul)se(]iu;ut  proceedinus,  the  courts  of  Pennsylvania, 
North  Carolina,  Tennessee  and  perha[)s  of  Alabama,  maintained  the  doctrine  tiiut  where  a 
prisoner  in  such  case  was  once  on  trial  he  was  in  jcupardy  in  tiie  meaninjr  of  the  consti- 
tution, and  could  not  be  retried. 

The  arffumeiits  in  favour  of  the  position  assumed  in  tiie  latter  cases  treated,  arc  ])ower. 
fully  expressed  by  Gibson  C.  J.  in  Com.  v.  Clue,  5  Ravvle  498,  the  case  from  which  the  in- 
dictment in  the  text  is  taken. 

(p)  Sec  State  v.  Rawlins,  8  Sm.  &  Marshall  GOO. 


PLEA,  &C.,  AS  TO  PROPERTY  OF  GOODS  IN  RESCUE.  6G7 

said  court,  by  lot,  when  the  names  of  the  said  six  grand  jurors  above 
mentioned  were  drawn,  by  lot,  to  serve  as  grand  jurors  for  the  said 
term  of  said  Circuit  Court;  nor  were  all  the  above  named  six  grand 
jurors,  nor  any  one  of  them,  summoned  by  the  sherifi' of  said  county 
from  the  by-standers  then  and  there  to  serve  as  jurors  for  the  first 
week  of  this  said  term  of  said  court.     {Concltde  as  ante,  p.  600). 

Plea  that  goods  vhich  defendant  rvas  charged  with  rescuing  from  the 
sheriff  icho  had  seized  them  under  an  execution  against  a  third  party, 
were  in  fact,  at  the  time,  the  property  of  and  in  the  possession  of  the 
defendant.{q) 

And  now  said  A.  K.,  protesting  that  he  is  not  guilty  of  the  pre- 
mises charged  in  said  indictment,  and  reserving  a  right  to  waive  this 

(q)  This  plea  was  sustained  by  the  Supreme  Court  of  Massachusetts  in  Com.  v.  Ken. 
nard,  8  Pick.  133,  as  a  bar  to  an  indictment  which  is  gi'ven  ante,  p.  .501,  charg-ing  the  de- 
fendant with  rescuing  goods  from  the  sheriff's  custody.  "  Tlie  question,"  said  Parker  C. 
J.,  "is  reduced  to  this,  whether  the  owner  of  goods  which  are  in  his  actual  possession 
rnay  not  lawfully  defend  his  possession  of  tiiem  against  a  seizure  or  an  attachment  by  an 
officer,  who  comes  to  take  them  on  a  precept  against  another  person  who  has  no  right  or 
interest  in  tiie  goods. 

"  Certainly  the  officer  in  such  case  would  be  trespasser,  for  he  does  not  act  under  any 
precept  against  such  owners,  nor  is  he  commanded  to  take  tiieir  goods.  Actions  of  tres- 
]mss  against  officers  thus  transgressing  are  among  the  most  common  actions  in  our  courts, 
and  they  depend  upon  the  same  principle  as  actions  of  assault  and  battery  or  false  impri- 
sonment, by  one  who  is  arrested  on  a  writ  or  warrant  against  another  person.  In  such 
case  there  is  no  authority  for  the  arrest,  and  the  person  making  it,  whether  by  mistake  or 
design,  is  a  mere  trespasser.  And  the  same  facts  wliich  would  sustain  an  action  of  tres- 
pass by  the  person  arrested,  will  justify  any  resistance  which  may  be  necessary  to  defend 
his  personal  liberty,  short  of  injurious  violence  to  the  officer. 

"  We  cannot  distinguish  between  an  officer  who  assumes  to  act  under  a  void  precept  and 
a  stranger  who  should  do  tiie  same  act  without  any  precept;  for  a  command  to  arrest  the 
person  or  seize  the  goods  of  B.  is  no  authority  against  the  person  or  goods  of  A.  And  an 
officer  without  a  precept  is  no  officer  in  the  particular  case  in  which  he  so  undertakes  to 
act.  The  officer  must  judge  at  his  peril  in  regard  to  the  person  against  whom  he  is  com- 
manded to  act.  This  is  said  to  be  hard,  but  it  is  a  hardship  resulting  from  the  voluntary 
assumption  of  a  hazardous  office,  and  considering  that  in  all  cases  of  doubt  the  officer  may 
require  indemnity  before  he  executes  his  precept,  the  hardship  is  imaginary;  Marshall  v, 
Hosmer,  4  Mass.  R.  63;  Bond  v.  VVard,  7  Mass.  R.  123. 

"  It  is  said  that  the  owner  of  goods  seized  or  attached  on  a  precept  against  another,  has 
legal  re?nedies  by  action  of  replevin,  trover  or  trespass,  and  therefore  ought  not  to  be 
allowed  to  protect  his  goods  with  a  strong  hand,  for  this  power  may  be  abused  so  as  to 
recover  the  property  of  the  debtor,  and  so  the  creditor  rnay  be  disabled  from  obtaining 
satisfaction.  Such  a  mischief  may  happen;  but  it  is  not  a  fair  argument  against  the  ex- 
istence of  a  right,  that  it  may  be  abused.  If  the  right  did  not  exist,  great  abuses  might 
come  from  the  power  in  officers  to  take  any  person's  property  upon  suspicion  or  suggestion 
that  it  belongs  to  the  debtor,  and  the  owner  might  be  driven  to  a  replevin,  in  which  he 
must  give  bond  with  surety,  or  to  his  action  for  damages,  in  which  the  expense  may  con- 
sume the  value  of  the  property. 

"  But  it  is  again  said,  that  the  rule  sought  to  be  established  by  the  defence  will  deprive 
creditors  of  the  power  of  trying  the  question  of  property  in  cases  where  there  may  be 
grounds  to  believe  that  it  is  covered  by  the  person  in  possession  claiming  to  be  the  owner. 
But  the  creditor  is  not  without  a  legal  remedy.  He  may  have  an  action  on  the  case  for 
interrupting, unlawfully  his  attachment.  The  officer  may  have  an  action  of  trespass  if  the 
goods  are  taken  out  of  his  possession.  And  the  trustee  process  will  compel  the  possessor 
to  make  t\ill  disclosure  of  his  right  to  hold.  And  besides  all  this,  the  party  is  liable  to 
indictment,  and  if  he  fails  in  n)aking  out  bis  right  stiictly,  will  incur  a  severe  penalty. 

"  It  will  be  recollected  that  this  is  a  criminal  prosecution  against  persons  who  were  in 
actual  possession  of  the  goods,  being  (he  acknowledged  owners,  or  their  servants  to  whose 
earc  they  were  committed;  that  they  did  nothing  more  than  defend  with  no  more  than 
necessary  torce,  their  po.-ssession.     'I'his  decision,  therefore,  will  form  no  prcctdenl  ibr 


608  PLEAS. 

plea  and  plead  anew  at  the  court  above,  demands  judgment  of  said 
indictment,  and  all  and  every  part  thereof,  and  for  plea  says  as  to  the 
force  and  arms  and  whatever  is  against  the  peace  in  said  first  and 
second  counts  in  said  indictment  mentioned,  and  the  wounding 
therein  supposed  to  be  done,  he  is  not  guilty  thereof  in  manner  and 
form  as  he  is  charged  therewith  in  said  indictment,  and  of  this  he 
puts  himself  upon  the  country.  And  as  to  the  residue  of  the  offences 
charged  in  said  indictment,  and  as  to  the  assaulting,  beating,  bruising, 
evil  treating  and  forcibly  and  with  a  strong  hand  depriving  of  the 
care,  custody  and  keeping  and  possession  of  goods  and  chattels,  the 
said  K.  says  that  said  commonwealth  ought  not  to  prosecute  and 
charge  him  therefor,  because  he  says  that  said  D.  D.  B.  in  said  indict- 
ment mentioned,  and  one  S.  F.  C,  before  and  on  the  said  second  day 
of  October  last,  and  at  the  time  when  said  offence  is  supposed  to  have 
been  committed,  were  lawfully  possessed  of  a  certain  shop  in  Con- 
gress street  in  said  Boston  and  of  certain  goods  and  chattels  then  and 
there  in  said  shop,  being  the  same  goods  and  chattels  in  said  second 
coiuit  in  said  indictment  mentioned,  which  said  goods  and  chattels 
were  then  and  there  the  proper  goods  and  chattels  of  said  B.  and  C, 
and  being  .so  possessed  and  seized  thereof,  the  said  T.  I.  S.,  just  be- 
fore the  said  time  when,  &c.,  to  wit,  on  said  second  day  of  October, 
was  unlawfully  in  said  shop  and  with  force  and  arms  making  a  great 
noise  and  disturbance,  and  at  said  time,  when,  &c.,  staid  and  con- 
tinued therein  making  such  noise  and  disturbance, without  leave  or 
license  and  against  the  will  of  said  B.  and  C,  and  then  and  there 
with  force  and  arms  and  with  a  strong  hand  kept  said  B.  and  C.  out 
of  possession  of  said  shop  and  of  said  goods  and  chattels,  and  then 
and  there  and  during  a  long  time,  disturbed  said  B.  and  C.  in  the  use 
and  enjoyment  of  said  shop  and  of  said  goods  and  chattels,  and 
greatly  annoyed  said  B.  and  C.  in  the  peaceable  possession  and  enjoy- 
ment of  said  shop  and  of  said  goods  and  chattels,  and  thereupon  the 
said  B.  then  and  there  requested  said  S.  to  cease  from  making  his 
said  noise  and  disturbance,  and  to  go  and  depart  from  said  shop  and 
to  give  up  and  relinquish  said  goods  and  chattels  to  said  B.  and  C, 
the  lawful  owners  thereof,  which  said  S.  then  and  there  refused  to 
do.  Whereupon  the  said  B.  did  specially  pray  and  request  said  K. 
to  aid  and  assist  him  the  said  B.  in  the  defence  of  the  possession  of 
said  shop  and  of  said  goods  and  chattels;  and  thereupon  said  B.  and 

cases  wliich  may  be  differently  circumstanced;  Mooney  v.  Iicach,  1  W.  Bl.  555;  Acii- 
worth  V.  Kemp,  1  Doufrl.  40  ;  Sanderson  v.  Bai<er,  2  W.  Bl.  832. 

"  We  have  liad  no  authorities  cited  on  the  |)art  tjfthe  commonwealth  wliieh  have  any 
tendency  to  show  tliat  the  owner  and  possessor  of"  jroods  may  not  delend  them  ag-ainst  an 
officer  who  comes  to  .seize  tliem  as  anotiicr  person's,  'i'hat  a  man  may  defl:nd  his  person, 
Jiis  lands  or  jroods,  against  tlie  intrusion  or  invasion  of  those  who  have  no  lawful  authority 
over  them,  would  seem  entirely  unquestionable.  If  tlic  officer  believes  the  possession  is 
only  colourable  and  the  claim  of  |)roperty  fraudulent,  if  backed  by  the  creditor's  orders 
or  secured  by  bond  of  indenmity,  he  will  take  care  to  be  so  attended  as  to  be  protected 
against  insult  in  the  execution  of  his  j)reccpt. 

"There  arc  cases  which  show  that  if  an  oflieer  having  a  precept  against  a  person  privi- 
leged from  arrest,  shall  arrest  him,  he  will  not  be  a  trespasser.  But  in  such  case  he  is 
commanded  to  arrest  the  particular  person,  and  is  sup|)osed  to  know  nothing  of  the  privi- 
lege;  the  i)arly  then  f()re  shall  be  held  to  apply  for  las  discharge  to  the  court  having 
jurisdiction  of  the  matter." 


REPLICATION DEMURRER.  669 

K.,  in  defence  of  said  possession  of  said  shop  and  of  said  goods  and 
chattels,  gently  laid  their  hands  upon  said  S,  in  order  to  remove  him 
from  said  shop,  and  did  then  and  there  remove  said  S.  from  said  shop 
and  from  said  goods  and  chattels,  as  they  lawfully  might  do  for  the 
cause  aforesaid,  doing  the  said  S.  no  unnecessary  harm  or  injury  ;  all 
which  are  the  same  assaulting,  beating,  bruising  and  evil  treating  and 
with  force  and  a  strong  hand  depriving  said  S.  of  the  care,  custody 
and  possession  of  said  goods  and  chattels  in  said  first  and  second 
counts  mentioned,  and  therein  supposed  to  be  done ;  and  this  said  K. 
is  ready  to  verify;  wherefore  he  prays  judgment  of  said  indictment, 
whether  said  commonwealth  ought  or  can  prosecute  him  for  the  pre- 
mises, and  that  he  may  be  discharged  thereof  witliout  day.    A.  K. 

Replication. 

And  now  J.  T.  A.,  the  attorney  of  said  commonwealth,  here  in 
court  agrees  to  the  above  reservation  as  to  so  much  of  said  plea  as 
that  whereof  the  said  A.  puts  himself  on  the  country,  for  the  com- 
monwealth doth  the  like.  And  as  to  the  rest  and  residue  of  said  plea 
lie  says  that  the  said  commonwealth  ought  not  by  reason  of  anything 
therein  contained,  to  be  precluded  from  prosecuting  the  said  A.  for 
the  several  matters  and  things  in  said  indictment  charged  upon  him; 
because  he  says  that  at  the  time  in  said  indictment  alleged,  he  the  said 
A.  committed  the  several  assaults,  batteries  and  trespasses  in  said  in- 
dictment set  forth  of  his  own  wrong,  and  without  any  such  cause  as 
he  hath  in  pleading  alleged ;  and  this  he  prays  may  be  inquired  of 
by  the  country.  J.  T.  A.,  Attorney,  &c. 

And  the  said  K.  doth  the  like.  A.  K. 

Demurrer  to  an  indictment  or  i7^formalio7i.{r) 

And  the  said  J.  S.,  in  his  own  proper  person,  cometh  into  court 
here,  and  having  heard  the  said  indictment  {or  information)  read, 
says  that  the  said  indictment  (or  information)  and  the  matters  therein 
contained,  in  manner  and  form  as  the  same  are  above  stated  and  set 
forth,  are  not  sufficient  in  law,  and  that  he  the  said  J.  S.  is  not  bound 
by  the  law  of  the  land  to  answer  the  same ;  and  this  he  is  ready  to 
verify  ;  wherefore  for  want  of  a  sufficient  indictment  {or  informa- 
tion), in  this  behalf,  the  said  J.  S.  prays  judgment,  and  that  by  the 
court  he  may  be  dismissed  and  discharged  from  the  said  premises  in 
the  said  indictment  {or  information)  specified. 

Joinder  to  same.{s) 

And  J.  N.,  who  prosecutes  for  the  said  state  in  this  behalf,  says 
that  the  said  indictment,  and  the  matters  therein  contained,  in  man- 
ner and  form  as  the  same  are  above  stated  and  set  forth,  are  sufficient 
in  law  to  compel  the  said  J,  S.  to  answer  the  same ;  and  the  said  J. 
N.,  who  prosecutes  as  aforesaid,  is  ready  to  verify  and  prove  the 
same,  as  the  court  here  shall  direct  and  award  ;  wherefore,  inasmuch 

(r)  Arch.  C.  P.  102.  {s)  Ih.  ]03. 


C70  DExMURRER. 

as  the  said  J.  S.  hath  not  answered  to  the  said  indictment,  nor  hitherto 
in  any  manner  denied  the  same,  the  said  J.  N.  for  our  said  (lady  the 
queen)  prays  judgment,  and  that  the  said  J.  S.  may  be  convicted  of 
the  premises  in  the  said  indictment  specified. 

( The  Like  form,  mutatis  mutandis,  may  he  adopted  in  the  case  of  infor- 
mations). 

Demurrer  to  a  plea  in  har.{t) 

And  J.  N.,  who  prosecutes  for  the  said  state  in  this  behalf,  as  to 
the  said  plea  of  the  said  J.  S.,  by  him  above  pleaded,  says  that  the 
same,  and  the  matters  therein  contained,  in  manner  and  form  as  the 
same  are  above  pleaded  and  set  forth,  are  not  sufficient  in  law  to  bar 
or  preclude  the  said  state  from  prosecuting  the  said  indictment  against 
him  the  said  J.  S, ;  and  that  the  said  state  is  not  bound  by  the  law  of 
the  land  to  answer  the  same ;  and  this  he  the  said  J,  N.,  who  prose- 
cutes as  aforesaid,  is  ready  to  verify ;  wherefore  for  want  of  a  suffi- 
cient plea  in  this  behalf,  he  the  said  J.  N.  for  the  said  state  prays 
judgment,  and  that  the  said  J.  S.  may  be  convicted  of  the  premises 
in  the  said  indictment  specified. 

Joinder  to  same.{u) 

And  the  said  J.  S.  says  that  his  said  plea  by  him  above  pleaded, 
and  the  matters  therein  contained,  in  manner  and  form  as  the  same 
are  above  pleaded  and  set  forth,  are  sufficient  in  law  to  bar  and  pre- 
clude the  said  state  from  prosecuting  the  said  indictment  against  him 
the  said  J.  S. ;  and  the  said  J.  S.  is  ready  to  verify  and  prove  tiie 
same,  as  the  said  court  here  shall  direct  and  award ;  wherefore,  inas- 
much as  the  said  J.  N.,  for  the  said  state,  hath  not  answered  the  said 
plea,  nor  hitherto  in  any  manner  denied  the  same,  the  said  J.  S.  prays 
judgment,  and  that  by  the  court  here  he  may  be  dismissed  and  dis- 
charged from  the  said  premises  in  the  said  indictment  specified. 

Demurrer  to  plea  of  autrefois  acquit.(v) 

And  J.  K.,  who  prosecutes  for  the  said  state  in  this  behalf,  cometh 
and  saith  that,  for  and  notwithstanding  anything  in  the  said  plea  of 
the  said  J.  A.  and  J.  V.,  by  them  above  pleaded,  our  said  (lord  the 
king)  ought  further  to  prosecute  them  the  said  J.  A.  and  J.  V.,  by 
reason  of  the  premises  in  the  said  indictment  to  which  the  said  plea 
is  above  pleaded,  mentioned ;  because  he  saith  that  the  said  plea, 
and  the  matters  therein  contained,  are  not  sufficient  in  law  to  bar  the 
said  state  from  further  prosecuting  them  the  said  J.  A.  and  J.  V.,  by 
reason  of  the  premises  in  the  said  indictment  to  which  the  said  plea 

(<)  Arch.  C.  P.  103. 

A  demurrer  to  a  pica  in  abatement  is  in  tlic  same  form,  except  that  it  concludes  with 
prayirijr  "  judjrmeiit,  and  that  the  naid  indictment  may  be  adjudged  good,  and  that  the  said 
J.  S.  may  further  answer  thereto,"  tStc. 

(M)  Arch.  (;.  P.  103. 

Tlie  joinder  in  the  same  if  the  demurrer  be  to  a  plea  in  abatement,  except  tliat  it  con- 
cUides  with  praying  "judgment  and  that  liie  said  indictment  may  be  quashed,"  &.c. 

(c)  Sec  Stark.  C.  P.  474. 


JOINDER  IN  DEMURRER.  671 

is  above  pleaded,  mentioned ;  and  this  the  said  T.  S.  is  ready  to 
verify;  wherefore  he  prays  judgment,  that  the  said  state  may  further 
prosecute  them  the  said  J.  A.  and  J.  V.,  by  reason  of  the  premises  in 
the  said  indictment  to  which  the  said  plea  is  above  pleaded,  men- 
tioned ;  and  that  the  said  J.  A.  and  J.  V.  may  answer  over  to  the 
same  indictment. 

Joinder  in  demurrer  to  same. 

And  the  said  J.  V.  and  J.  A.  being  now  here  as  aforesaid  in  their 
proper  persons,  under  the  custody  of  the  said  sherifi'  of  the  County 
of  Middlesex,  say  that  the  said  plea  of  them  the  said  J.  V.  and  J.  A. 
in  form  aforesaid,  above  pleaded,  and  the  matters  therein  contained, 
are  sufficient  in  law  to  bar  the  said  state  from  further  prosecuting 
them  the  said  J.  V.  and  J.  A.,  by  reason  of  the  premises  in  the  said 
indictment  to  which  the  said  plea  is  above  pleaded,  mentioned  ;  and 
this  they  are  ready  to  verify,  &c. ;  wherefore  as  before,  they  pray 
judgment,  and  that  the  said  state  may  be  barred  from  further  prose- 
cuting, by  reason  of  the  premises  mentioned  in  the  said  indictment; 
to  which  the  said  plea  of  them  the  said  J.  V.  and  J.  A.  is  above 
pleaded;  and  that  they  may  be  dismissed  this  court  without  day, 
&c. 


INDEX 


Abatement,  forms  of  pleas  of,  654,  et  seq. 

nature  of,  8. 
Abduction,  indt.  for,  107. 
Abortion,  general  nature  of  offence,  108,  n. 
requisites  of  indt.  for,  108,  338,  366. 
Indictments : 

assaulting  A.  B.  and  thrusting    an 

instrument  into  her  womb,  slie  be- 
ing big,  quick  and  pregnant,  108. 
same,  omitting  averment  of  quick- 

ness.  111. 
same,    merely   averring    pregnancy, 

111. 
assault  on  a  woman  quick  witli  child, 

so  that  she  brought  forth  the  child 

dead,  112. 
producing  abortion    by  instrument, 

under  New  York  Rev.  Stat.,  113. 
same,  with  medicine,  under  Indiana 

Stat.,  113. 
conspiracies  to  commit,  338,  3G6. 
Abusing  justice  in  discharge  of  duties,  indt". 

for,  567. 
Accessaries,  general     requisites    of    indts. 

against,  32. 
time  of  trial  and  venire  of,  32. 
accessaries  before  the  fact,  who,  32, 
accessaries  after  the  fact,  32. 
principals  in  first  and  second  degrees, 

34. 
Indictments : 

against   accessary   before    the    fact, 

together  with  the  principal,  32. 
against  an  accessary  betbrc  the  fict, 

tlie  i)rincipal  being  convicted,  34. 
against  accessary  after  the  fact,  with 

the  principal,  35. 
against  accessary  after  the  fact,  the 

l)rincipal  having  been  convicted, 35. 
against    accessary    before    tlie     fact 

generally  in  Massachusetts,  35. 
against   accessary  before  the  fact  in 

murder,  at  common  law,  36. 
against  accessary  before  the    fact  in 

murder,  in  Massachusetts,  36. 
against  an  accessary  for  harbouring 

a  principal  felon  in  murder,  36. 


Accessaries,  against  an  accessary  to  burglary 
after  the  fact,  37. 

against  principal  and  accessaries 
before  the  fact  in  same,  37. 

against  accessary  before  the  fact  to 
suicide.  First  count,  against  sui- 
cide as  principal  in  the  first  degree, 
and  against  party  aiding  him  as 
principal  in  the  second  degree,  37. 

second  count,  against  defendant  for 
murdering  suicide,  38-66. 

against  a  defendant  in  murder,  who 
is  an  accessary  before  the  fact  in 
one  county  tb  a  murder  committed 
in  another,  39. 

See  for  other  forms  of  accessaries 
to  murder,  &c.,  "  Homicide." 

against  principal  and  accessary  be- 
fore tiie  fact  in  larceny,  40. 

against  accessary  for  receiving  stolen 
goods,  40. 

against  accessary  for  receiving  prin- 
cipal felon,  41. 

against  accessary  to  piracy  before 
the  fact,  618. 

against  accessary  to  piracy  after  the 
fact,  619. 
Acquit,  see  ^^  Autrefois  Acquit^ 
Addition,  how  to  be  set  forth,  7. 

plea  that  defendant  has  none,  655. 

plea  that  defendant  has  a  wrong  one, 
656. 
Adultery,  requisites  of  indt,  584. 

indt.  for,  584,  ct  seq. 
Affirmations  of  grand  jury,  how  averred,  5. 
AflVay  at  common  law,  indt.  for,  489. 
Alabama,  commencement  and  conclusion  of 
indt.,  26. 
Indictments  in  : 

against  principal  in  first  and  second 
degree  for  ma^'hem  in  biting  off 
an  ear,  105. 

maliciously  breaking  prosecufor's 
arm  with  intent  to  maim  bin),  106. 

larceny  of  a  slave,  200. 

playing  at  cards,  444. 

kce])ing  a  gaming  table,  444. 

against  overseer  for  refusing  to  re- 
pair road,  466. 

violation  of  license  laws,  476. 


INDEX. 


G73 


Ambassador,  offences  against,  see  "  Foreign 

Minisler." 
Apprentice,  abuse  of,  indt.  against  master 
for,  5-29. 

killing  by  hard  treatment,  79. 
Arkansas,  commencement  and    conclusion 

of  indt.  in,  31. 
Armed,  going  to  terror  of  people,  &c.,  494. 
Arsenal  of  U.  S.,  breach  of  peace  in,  indt 

for,  491. 
Arson,  general  frame  of  indt.  at  c.  law,  183. 

requisites  of  indt.  for,  183. 
Indictments : 

burning  unfinished  dwelling  house 
in  Massacliusetts,  185. 

setting  fire  to  building,  whereby 
dwelling  house  was  burned,  in 
same,  185. 

burning  incomplete  dwelling  house, 
in  same,  185. 

burning  meeting  house  in  Vermont, 
186. 

burning  one's  own  house  with  intent 
to  defraud  underwriters,  187. 

conspiracy  to  burn  vessel  with  intent 
to  defraud  same,  187. 

burning  barracks  of  hay  in  Pennsyl- 
vania, 187. 

burning  stable  in  same,  187-8. 

attempting  to  set   fire  to   house   in 
Massachusetts,  187. 
Assaults,  general  form  of  indt.,  114. 

requisites  of  indt.  for,  114,  n. 

common  assaults,  114. 

cases  where  battery  is  no  offence,  115. 
Indictments  : 

common  assault,  114. 

assault  without  battery,  115. 

assault  and  battery  in  Massachusetts, 
115. 

same  in  Connecticut,  in  information 
with  commencement  and  conclu- 
sion, 1 1 6. 

same  in  New  York,  vpith  commence- 
ment and  conclusion,  116. 

same  in  New  Jerse}^  with  commence- 
ment and  conclusion,  116. 

same  in  Pennsylvania,  with  com- 
mencement and  conclusion,  117. 

assault  with  a  dog,  117. 

assault  and  tearing  prosecutor's  hair, 
117. 

assaulting  driver  of  chaise,  and  over- 
turning chaise  with  wlieclofcart,l  18 

assault  and  beating  out  eye,  118. 

assault  and  riding  over  person  with 
chaise,  118. 

assault  and  administering  cantha- 
rides  to  prosecutor,  1 19. 

assault  by  throwing  infirm  person  on 
ground,  with  intent  to  kill,  119. 

assault  and  beating  and  wounding 
on  high  seas,  120. 

assault  on  same,  by  binding  prosecu- 
tor, and  forcing  an  iron  bolt  down 
his  throat,  12U. 
57 


Assault   on  same  with   dangerous   weapon, 
121. 

anotlier  form  for  same,  122. 

same  in  a  foreign  port,  the  weapon 
being  a  Spanisli  knife,  123. 

assault  and  false  imprisonment  at 
common  law,  124. 

assault  and  false  imprisonment,  with 
the  obtaining  of  five  dollars,  124. 

assault  with  intent  to  murder,  at 
common  law,  125. 

another  form  for  same,  125. 

same  under  New  York  Rev.  Stat., 
126. 

same  in  South  Carolina,  127. 

assault  with  intent  to  drown,  125. 

assault  with  intent  to  commit  felony 
generally,  126. 

felonious  assault  under  Massachu- 
setts Stat.,  126. 

assault  with  intent  to  rob,  against 
two,  127. 

another  form  for  same,  127. 

assault  with  inttnt  to  ravish,  127. 

another  form  for  same,  128. 

same  against  two,  128. 

same  against  a  coloured  person  in 
North  Carolina,  123. 

assault  with  intent  to  steal,  128. 

assault  with  intent  to  obstruct  the 
apprehension  of  a  party  charged 
with  otfenee,  indt.  against,  509. 

assaults  on  otficers  of  justice,  see 
''Resistance  to  Officers  of  Justice.'''' 

assaults    with    attempts    to    commit 
offences,  see  "Attempts"  &c. 
Assembly,  unlawful,  indt.  for,  489. 
Attempts  to   commit  offences,  how  far   in- 
dictable, 604,  n.     See   '^Assaults 
with  Intent,'^  tScc. 
Indictments  : 

to  commit  offences  generally  in  Mas- 
sachusetts, 604. 

to  break  and  enter  a  dwelling,  at 
common  law,  183. 

to  steal  from  a  store  by  breaking  into 
it,  183. 

to  set  fire  to  and  break  into  house  in 
Massacliusetts,  187. 

to  influence  a  witness  corruptly,  324. 

to  entice  a  witness  to  withdraw  from 
the  prosecution  of  a  felon,  325-6. 

to  suborn  a  witness  in  a  civil  case  in 
Massachusetts,  327. 

to  induce  a  woman  to  swear  a  child 
on  another,  327. 

to  induce  a  witness  to  disobey  a  sub- 
poena to  give  evidence  before  the 
grand  jury,  328. 

to  excite  insurrection  by  seditious 
letter,  565. 

to  bribe  member  of  House  of  Repre- 
sentatives, 588. 

to  bribe  constable,  593. 

to  commit  arson,  in  New  York,  6"5. 

to  set  fire  to  house,  at  common  law,  COo. 


674 


INDEX. 


Attempt  to  facilitate  escape  of  prisoner,  605-6. 
to  ei)tice  U.  S.  soldier  to  desert,  653. 
to    keep    keys,  &,e.,   with   intent   to 

commit  burglary,  607. 
to  administer  poison  with    intent  to 

murder,  607. 
For  attempts  to  revolt,  &e.,  see  "  i?e- 
vo!l." 
Attorney,  indt.  against  for  buying  notes,  528. 
Auction,  indt.  for  holding  illegally,  588. 
Autrefois  acquit  and  convict,  pleas  of,  requi- 
sites of,  forms  of,  657. 


B 


Bail,  false  representation  of  indt.  for,  229. 
Bank  notes,  forgery  of,  154,  et  seq. 
larceny  of,  196,  et  seq. 
Indictments  : 

passing   when  sham   as  a   cheat  at 

common  law,  227. 
passing   when   sham    on    false   pre- 
tences, 249. 
conspiring  t«  pass  same  as  a  cheat 

upon  the  public,  396. 
same  as  a  cheat  upon  an  individual, 
347. 
Barrator,  indt.  against,  457. 
Bastard  child,  birth  of  in  secret,  and  mur- 
der by  choking,  indt.  for,  77. 
birth    of  in   secret,   and   murder  by 

throwing  in  privy,  indt.  for,  78. 
birth  of  in   secret,  and   murder  by 

strangling  in  linen  cloth,  78. 
birth   of  in   secret,  and   murder    by 

strangling,  in  Pennsylvania,  79. 
concealing  death  of  by  throwing  in 

well,  indt  for,  99. 
same,  not  stating  means  of  conceal- 
ment, indt.  for,  100. 
same  under  English  stat.,  101. 
Bastardy,  see  "  Fornication  and  Bastardy," 
Bathing  publicly,  indt.  for,  451. 
Bawdy    house,   sec    "  Disorderly  Houses" 

"  Nuisance." 
Betting  at  election,  indt.  for,  598. 

at  horse  race,  indt.  for,  598. 
Bigamy,  indts.  for,  581,  et  seq. 

requisites  of,  581. 
Billiard  tables,  &c.,  indt.  against,  437. 
Bill  of  particulars,  see  "  Particulars." 
Biting  off  the  car,  indt.  for,  10.5-6. 
Blasphemy,  indt.  for,   (see   "Libel,"  ^^Pro- 
fanity,") 570,  et  seq. 
Breach  of  the  peace,  conspiracy  to  commit, 

338.     See  "  Riot." 
Breach  of  prison,  indt.  for,  503. 
Breaking  windows  riotously,  indt.  for,  490. 
Breaking,  into  house,  see  "  Burglary." 
Indictmevls : 

into  house  and  frightening  pregnant 

woman,  216. 
into  close  and  cutting  down  tree,  223. 
into  close  and    pulling  down   fence, 
21.'). 
Bribe,  attempt  to,  by  letter,  indt.  for,  564. 


Bribery  of  member  of  House  of  Representa- 
tives, attempt  to,  indt.  for,  5SS. 
of  constable,  attempt  to  effect,  indt. 

for,  593. 
of  Judge  of  U.  S.,  indt.  for,  593. 
at  election,  indt.  for,  594. 
of  legislator,  how  far  a  misdemeanor, 
588,  n. 
Bridges,  nuisances  to,  402. 

indt.  for  obstructing,  402. 
Buggery,  see  "  Sodomy." 
Burglary,  general  frame  of  indt.  for  (with 
larceny),  at  common  law,  180. 
requisites  of  indt,  180-1. 
Indictments : 

burglary    and    larceny    at    common 

law,  181. 
burglary   at    common    law    without 

larceny,  182. 
breaking    into    shop    not    adjoining 
dwelling  house  in  night  time,  un- 
der Massachusetts  stat,  182. 
general  form  of  indt  in  N.  York,  182. 
attempting  to  break  into  a  dwelling 
house  at  night,at  common  law,  183. 
breaking    into  store   with   intent  to 

steal,  at  common  law,  183. 
accessaries  after  fact  to  burglary,  37. 
breaking  and  entering  vessel  in  night 

time,  in  Massachusetts,  198. 
same  into    dwelling  house,  &c.,  in 

same,  198. 
same  into  shop,  &c.,  in  same,  198. 
keeping  keys  on  hand  with  intent  to 
commit  burglary,  607. 
Burning,  »&c.,  see  "  Arson." 
Burial,  preventing,  &c.,  indt  for,  480. 
Burking,  indt.  for,  478-9. 
Business,  offensive,  see  "  Nuisance." 


Captain  of  vessel,  indt  against  for  bringing 
into  port  person  with  infectious  dis- 
ease, 531. 
indt.  against  for  not  providing  whole- 
some food  to  passengers,  53. 
indt  against  for  inflicting  cruel  and 
unusual  punishment  on  crew,  540. 
See  "  Seamen." 
Caption,  general  form  of,  1. 

requisites  of,  1,  et  seq. 
precedent  of  in  U.  S.  courts,  2. 
in  New  Jersey,  3. 
in  New  York,  4. 
in  Vermont,  4. 
Cards,  playing  with,  see  "  Gaming." 
Carriers  of  letters,  &c.,  misconduct  by,  see 

"  J'ost  Office." 

Ciiallenging  to  fight  at  common  law,  indt  fw, 

600,  for  jjosting  at  common  law,  550,  603. 

Challenge,  indt  for  provoking  another  to  send, 

600. 

writing  and  delivering  at  request  of 

third  person,  601. 
verbal,  &.C.,  indt,  for,  601. 


INDEX. 


675 


Challenge,  giving  in  the  presence  of  justice 
of  the  peace,  indt.  for,  602. 
sending,  &.C.,  in  Pennsylvania,  602. 
accepting,  &c.,  indt.  for,  602. 
against  second  for  carrying,  &c.,  in 

South  Carolina,  indt.  for,  602. 
being  second  in,  &c.,  indt.  for,  603. 
Chancery,   false    swearing  in   answers  at, 

312-16. 
Chastity,  solicitation  of  indictable   in  this 

country,  422. 
Cheats,  at  common  law  generally,  224. 
Indictments : 

selling    by    false    weight    or    mea- 
sure, 224. 
cheating  by  false  cards,  226. 
passing  sham  bank  note,  227,  347-96. 
obtaining  goods  by  same,  227. 
cheating  by  counterfeit  letter,  228. 
See  "  Secreting  Goods"  &lc.,  "  False 
Personation"  "  Fruudulent  Insol- 
vency,''''  "  Factors"   "  False   Pre- 
tences." 
Cock  fighting,  indt.  for,  434,  441. 
Coining,  see  "Forgery." 
Coin  of  tlie  U.  S.,  debasing  and  diminishing, 

indts.  for,  175. 
Collector  of  tolls,   indt.   against  for  extor- 
tion, 525. 
Coloured  persons,  gaming  with,  indt.  in  Ala- 
bama, 444.     See  "Slaves." 
Commissioner,  indt.  against  for  not  repair- 
ing road,  465. 
Common  scold,  indt.  against,  457. 
Compounding  felony,  nature  of  offence,  514. 
indt.  for  at  common  law,  514. 
misdemeanor,  indt.  for,  515. 
Compromises  of  criminal  cases,  how  far  per- 
missible, 514. 
Concealing  death  of  bastard  child,  see  "  Bas- 
tard Child." 
Conclusion  of  indictment  generally,  11. 

in  the  federal  courts  and  the  courts 
of  the  several  states,  17,  97, 123. 
Confining  master,  indt.  for,  613. 
Congregation,  religious,  disturbance  of,  indt. 

for,  493-4. 
Connecticut,  commencement  and  conclusion 
of  indt.  and  information  in,  20. 
information  in,  for  assault  and  bat- 
tery and  breach  of  peace,  1 16. 
larceny  of  bank  note  in,  197. 
Conspiracy,  number  of  defendants  necessary 
in,  6,  332. 
policy  of  the  extension  of  offence,  330. 
general  definition  of,  330-1. 
how  far  its  expansion  consists  with 
the  right  of  courts  of  equity  to  de- 
mand a  discovery  under  oath,  331. 
Conspiracies  to  commit  felonies,  332. 
where  merger  exists,  333. 
to  commit  misdemeanors,  333. 
to  violate  the  false  pretence  laws,  334. 
to  violate  lottery  laws,  336. 
to  violate  laws  making  it  penal  in  a 
debtor  to  secrete  his  property  with 


intent    to    defraud    liis    creditors, 
338. 
to  commit  breaches  of  the  peace,  338. 
to  produce  abortion,  338. 

to  publisli  forged  notes,  339,  345-7. 

seditious  conspiracies,  339. 

where  bill  of  particulars  may  be  de- 
manded, 336,340,344,351. 

form  of,  &LC.,  3^1. 

what  rules  are  to  be  observed  in  draw- 
ing  indictments  for  conspiracies 
where  tiie  object  is  not  per  se  in- 
dictable, 339-40. 

names  of  parties  injured,  how  to  be 
pleaded,  342. 

overt  acts,  nature  and  effect  of^  343-6. 
Indictments : 

to  rob,  343. 

to  murder,  343. 

to  cheat  pfosccutor  by  divers  false 
pretences,  344. 

to  cheat  by  means  of  false  pretences, 
&c.,  in  form  and  similitude  of  bank 
notes,  345. 

to  cheat  prosecutor  by  inducing  him 
to  buy  a  bad  note,  347. 

to  cheat  by  indirect  means,  with  overt 
acts  charging  false  pretences,  349. 

to  cheat  by  false  pretences,  with  overt 
acts,  &,e.,  351. 

to  obtain  from  prosecutors  certain 
goods  under  certain  pretences, 
354-5. 

against  ofHcers  of  a  bank,  for  conspi- 
racy to  obtain  discounts  by  frau- 
dulent means,  356. 

against  same,  for  conspiring  to  obtain 
large  quantities  of  notes  belonging 
to  bank  by  fraud,  &-c.,  359. 

against  same,  for  conspiring  to  ap- 
propriate several  bills  of  exchange, 
360. 

against  same,  for  obtaining  money 
from  the  bank  by  means  of  false 
entries  and  fictitious  drafts,  361. 

to  cheat  under  pretence  of  being  a 
merchant,  with  overt  acts,  362. 

to  sell  lottery  tickets,  363. 

to  entice  a  ixrson  to  play  at  unlawful 
games,  304. 

to  make  a  great  riot,  &.C.,  364. 

to  prevent  by  violence  the  introduc- 
tion of  tiie  English  language  into 
a  churcii,  365. 

to  produce  abortion,  366. 

to  escape  (by  prisoners),  367. 

same,  with  overt  act,  367-8. 

to  impose  \ipon  tlie  pubHc  by  the  ma- 
nufacture of  spurious  indigo,  witii 
intent  to  sell  the  same  as  genuine 
indigo,  &c.,  369. 

to  jjublish  fraudulent  bank  notes,  with 
intent  to  eiieat  the  public,  369. 

to  defraud  the  queen  by  fraudulently 
removing  goods  subject  to  duties, 
370. 


676 


INDEX. 


Conspiracy  to  cast  away  a  vessel  with  intent 
to  defraud  the  underwriters,  371. 

to  rise  upon  a  vessel  and  carry  her  to 
a  port  occupied  by  an  enemy,  «&c., 
374. 

to  disturb  a  party  in  the  possession 
of  his  lands,  and  to  deprive  him  of 
them,  375. 

to  cut  down  timber  trees,  371. 

to  cheat  tenant  of  rent,  by  a  false 
claim  as  landlord,  376. 

to  molest  tenant  by  distresses,  377. 

to  obtain  g-oods  on  credit,  and  then  to 
abscond  and  defraud  the  vendor 
thereof,  377. 

to  defraud  an  illiterate  person,  by 
falsely  reading-  to  him  a  deed  of 
bargain  and  sale  as  and  for  a  bond 
of  indemnity,  378. 

to  procure  tlie  elopement  of  a  minor 
daughter,  &-c.,  379. 

another  form  for  same,  381. 

among  workmen  to  raise  the  price  of 
wages,  382. 

among  workmen,  &c.,  to  prevent 
their  masters  from  retaining  any 
person  as  an  apprentice,  387. 

by  persons  engaged  in  the  public 
works  to  increase  the  rate  of  pas- 
sage money  and  freight,  388. 

to  charge  a  man  with  a  crime,  393, 
400. 

to  charge  a  man  with  receiving  stolen 
goods,  &-C.,  and  obtaining  money 
for  compounding  same,  394. 

to  charge  a  man  with  an  unnatural 
crime,  and  thereby  to  obtain  mo- 
ney, 395. 

to  extort  money  by  criminal  prose- 
cution, 396. 

to  impoverish  the  prosecutor,  and  hin- 
der liim  from  executing  his  lawful 
trade  as  tailor.  Sec,  398. 

to  defame  a  public  officer,  398. 

to  indict  a  person  for  a  capital  offence 
who  was  acquitted  at  the  trial,  400. 

to  induce  a  material  witness  to  sup- 
press his  testimony,  401. 

to  sell  a  wife,  586. 

to  excite  sedition,  646,  et  seq. 

For  seditious  conspiracies,  see  "Trea- 
son," 
Constable,  indt.  against  for  not  attending 
session,  524. 

for  refusal  to  act  as,  534-5. 

indt.  against  for  neglecting  to  execute 
warrant  for  extorting  money  under 
pretence  of  discharging  a  bench 
warrant,  523. 

indt.  against  for  extortion,  522. 

indt.  against  for  escape,  539. 

refusal  to  aid  in  service  of  capias  ad 
rcH()ondendum,  indt.  for,  508. 

assault  on,  &,c.,  indt.  for,  504. 

resistance  to  when  employed  in  arrest 
of  fugitive,  &LC,  indt.  lor,  506-9. 


Constable,  refusing  to  aid  in  carrying  offender 

to  prison,  indt.  for,  498. 
Corruption   of  officer  of  government,  indt. 
for,  364. 
at  elections,  indt.  for,  594. 
See  "  Brihery." 
Counterfeit   letter,    cheating   by   means  of, 

indt.  for,  228. 
Counterfeiting,  see  "Forgery." 
Counts,  how  tar  several  may  be  joined,  12. 
County,  indt.  against  for  not  repairing  high- 
ways, 459. 
requisites  of  indt.  for,  459. 
Coventry  act,  indt.  under,  102. 
Creditors,  secreting  goods  with  intent  to  de- 
fraud, 229-301. 
conspiracies  to  effect  the  same,  338. 
indt.  for   same  at  common  law,  377. 
Crew  of  vessel,  unusual  punishment  to,  indt. 

for,  540. 
Cruelty  to  apprentice  or  servants,  indt.  for, 

529-30 ;  killing  by  same,  79. 
Cruelty  to  pauper,  indt.  for,  532. 
Cruel  and  unusual  punishment,  indt,  against 

officer  of  vessel  for  inflicting,  540. 
Customs,  officers  of,  resistance  to,  indt.  for, 
513. 


D 


Dam,  erecting,  on  a  navigable  river,  indt. 
for,  416. 
erecting  same  on  creek,  indt.  for,  419. 
Dangerous    weapons,    going    armed    with, 
&c.,  indt.  for,  494. 
carrying  same,  &c.,  495. 
Dead  body,  digging  up  and  removing  same, 
at  common  law,  478. 
Indictments : 

in  Massachusetts,  478. 
in  New  Hampshire,  474. 
in  Indiana,  480. 

of  a  convict,  selling  same,  &c.,  480. 
preventing  interment  of|  by  arrrest, 
480. 
Dead  person,  libel  on,  indt.  for,  545. 
Debasing  U.  S.  coin,  by  officer  employed  in 

mint,  175. 
Defendant's  name,  how  to  be  pleaded,  5. 

how  error  in  pleading  to  te  excepted 
to,  8.     Sec  "Abatement." 
Defendants,  when  several  may  be  joined,  6. 
Delaware,   commencement  and   conclusion 

of  indt.  in,  23. 
Demurrers  to  indt.,  669, 
to  pleas,  670, 
Deputy  gaoler,  assault  on,  indt.  for,  510. 
Desert,  enticing   U.  S.  soldiers,  &.C.,   indt. 

for,  653. 
Deserter,  indt.  against,  together  with  person 

harbouring  him,  653. 
Destroying  a  vessel  at  sea,  with  intent  to 

defraud  underwriters,  indt.  for,  274, 
Detainer,  see  "  Forcible  Entry." 
Digging    up    a    dead    body,    indt.    against, 

47ti-y. 


INDEX. 


677 


Discovery,  how  far  right  of  courts  of  equity 
to  compel  may  be  atfected  by  expansion 
of  cons]jiracy,  331. 
Disease,  contagious,  exposing  a  person  in- 
fected with  to  the  public,  indt.  for,  428,  531. 
Disinterring  dead  body,  indt.  against,  473-!). 
Disorderl}'   house,   requisites   of   indt.    for, 
423. 
indts.  for,  430,  et  seq. 
Distillery,  when  indictable   as  a  nuisance, 
403. 
keeping   in  public  street,  indt.  for, 
427. 
Distress,  rescuing  goods  seized  on,  indt.  for, 

500-2. 
Disturbing  religious  meetings,  indt.  against, 

4y3,  et  seq. 
Drunkenness,  notorious,  how  far  indictable, 
422. 
indt.  for,  456. 

against  magistrate  for  proceeding  to 
discharge  of  duties  in  state  of,  519. 
Duel,  see  "  Challenge.'''' 
Duties,  indt.  for  conspiracy  to  evade,  370. 


E 


Effigies,  indt.  for  collecting  a  crowd  by  the 

exhibition  of,  447. 
Effigy,  hanging  a  man  by,  indt.  for,  567. 
Election,  interrupting  judge  of,  492. 
disturbance  of,  indt.  for,  492. 
false  swearing  at,  indt.  for,  307. 
corrupt  interference  with,  indt.   for, 

594. 
doubling  and  illegal  voting  at,  indt. 

for,  596. 
betting  at,  indt.  for,  598. 
Elopement  of  a  minor  daughter,  conspiracy 

to  effect,  indt.  for,  379. 
Embezzlement,  nature  of  offence,  204-6-9. 
Indictments  for  : 

against  officer  of  U.  S,  mint,  204. 
embezzlement  in  Massachusetts,  209. 
in  New  York,  210. 
by    clerk    or   servant, 

211. 
by  factor  in   Pennsyl- 
vania, 237. 
See   "Factor,"  ''Fraudulent    Insol- 
vency" 
Embracery,  indt.  for,  597. 
Endeavour  to  conceal  birth  of  bastard  child, 
indt.  for,  101. 
See  ''Bastard  Child." 
Endeavouring  to  commit  offences,  see  "  At- 
tempts.''' 
Endeavouring  to  influence  a  witness,  indt. 

for,  324. 
Engrossing,  nature  of  offence,  587. 

indt.  for,  588. 
Entry,  forcible — sec  "  Forcible  Entry." 
Escape,  indt.  for  a  conspiracy  to,  367-8-9. 
negligent,  indt.  against  constable  for, 

539. 
voluntary,  indt.  againstgaolerfor,535. 


Escape,  indt.  against  prisoner  for,  540. 

attempt  to  facilitate,  against  a  third 
party,  indt.  for,  605-6. 
Execution,  rescuing  goods  seized   in,  indt. 

for,  501-2. 
Exparte   statement  of  trial,   indt.  for   pub- 
lishing an,  551. 
Exposure  of  person,  indt.  for,  451,  et  seq. 
Extortion,  conspiracies  of,  extort  money  by 
criminal  prosecutions,  394,  et  seq. 
indt.  against  collector  of  tolls  for,  528. 
against  constable  for,  522-3. 
against  magistrate  for,  520-1. 

F 

Factor,  indt.  for  pledging  goods  consigned 
to  him,  &,e.,  237. 

selling  same  and  applying  proceeds 
to  his  own  use,  237. 
False  cards,  indt.  for  cheating  by,  226. 
False   imprisonment,  indt.  against,  at  com- 
mon law,  124. 

same  coupled  with  extortion,  124. 

same  coupled  with  riot,  491. 
False  weight,  indt.  for  selling  by,  224. 
False  personation  of  bail,  indt.  tor,  229. 
False  pretences,  obtaining  goods  by,  general 
frame  of  indt.  for,  239. 

general  character  of  offence,  239. 

requisites  of  indt.,  241. 

conspiracies  to  violate  false  pretence 
laws,  how  to  be  pleaded,  334. 
Indictments  : 

form  used  in  Massachusetts,  243. 

same  in  Now  York,  244. 

pretence  that  defendant  was  agent  of 
a  lottery,  245. 

pretence  that  lie  was  Mr.  H.  who  had 
cured  Mrs.  C.  at  the  Oxford  Infir- 
mary, whereby  he  induced  the  pro- 
secutor to  buy  a  bottle  of  ointment, 
&c.,  for  which  he  received  a  so- 
vereign, >fcc.,  245. 

against  a  member  of  a  benefit  club  or 
society  for  obtaining  money  be- 
longing to  the  rest  of  the  mem- 
bers by  false  pretences,  246. 

another  form  for  same,  coupled  with 
the  production  to  the  society  of  a 
false  certificate  of  burial,  247. 

pretence  that  a  broken  bank  was 
good,  249,  239. 

pretence  that  defendant  was  agent 
for  A.  B.,  and  as  such  had  been 
sent  by  A.  B.  to  C.  D.,  to  receive 
certain  money  due  from  latter  to 
former,  251. 

pretence  that  defendant  was  sent  for 
the  ])articular  goods  obtained,  253. 

pretence  that  defendant  was  a  mar- 
ried man,  and  liial  having  been 
engaged  to  prosecutor,  and  the  en- 
gagement broken  off,  he  could  sup- 
port an  action  for  breach  of  pro- 
mise, 254. 


0/ 


fi78 


IX  DFX. 


False  pretence  that  defendant  was  agent  of 
anotliLT,  who  was  possessed  of  cer- 
tain capital,  255,  264. 
pretence  that  defendant  himself  was 
possessed  of  eight  thousand  dollars 
capital,  and  other  things,  257. 
pretence  that  defendant  was  well  off 

and  free  from  debt,  259. 
pretence    that  certain  papers   shown 
by  defendant  tn   prosecutor  were 
genuine,  &c.,  261. 
pretence   that  a  certain  watch    was 

gold,  262. 
pretence    that   a   certain    horse   was 
sound,  and   was  the  horse  called 
"  Charley,"  263. 
pretence  that  a   horse  and  phaeton 
were  the  property  of  a  lady  tiien 
latel}'  deceased,  and  that  the  horse 
was  kind,  264. 
pretence  that  defendant  was  sent  by 
J.  P.  to  purchase  goods,  and  that 
J.  P.  possessed  certain  capital,  &.C., 
264,  255. 
pretence  that  defendant  was  not  an 
apprentice,  tiie  pretence  being  made 
to  recruiting  officer,  266. 
pretence  that  a  ticket  purporting  to 
be  a  true  ticket  entitling  the  bearer 
to  certain  porterage  was  true,  267. 
pretence  that  defendant  had  no  note 
protested,   was    solvent,    and    was 
worth  nine  thousand  dollars,  268. 
pretence  that  certain  goods  had  been 
purchased  by  defendant  and  were 
to   be  shipped  to   prosecutor,  and 
obtaining     acceptances     thereby, 
271. 
pretence  that  defendant  had  certain 
goods  in  storage,  subject  to  prose- 
cutor's orders,  and   obtaining  ac- 
ceptances thereby,  272. 
receiving    goods   obtained    by    false 
pretences,  273. 
Federal  courts,  see  "  United  States  Courts." 
Felonies,  when  joinable  with  misdemeanors, 
13. 
assaults  with  intent  to  commit,  see 
"  Assaults." 
Felonious  assaults,  indt.   for  in  Massachu- 
setts, 126. 
Felony,   compounding,    nature  of   offence, 
514. 
indt.  for,  514. 
Fences,  indt.  for  negligently  permitting  to 
remain  less  than    five    feet    liigh,    under 
North  Carolina  statute,  421. 
Ferry,  cutting  ropes  across,  indt.  for,  217. 
Fi^flit,  challenging  to,  see  "  Cf/iallerifring." 
Final  count  in  U.S.  courts,  17,97,  123. 
F'ire-works,  indt.  for  letting  off  in  streets, 

407. 
Fish,  obstructing  in  river,  indt.  for,  420. 
Force  and  arms,  how  far  essential,  9. 
Forcible  entry  and  detainer,  general  form  of 
indt.  at  common  law,  217  . 


Forcible  entrv  and   detainer,  another  form 

of,  220-222. 
general  requisites  of  indt.,  217. 
description  of  premises,  219. 
forcible   entry    within   the    statutes, 

218. 
Indictments : 

forcible   entry,  with  no  averment  of 

freehold  or  leasehold  possession  in 

prosecutor,  221. 
forcible  entry  into  freehold,  under  5 

Rich.  II.,  222. 
forcible  entry  into  leasehold,  under  21 

Jac.  I.,  222. 
forcible  detainer,  on  statute  8  Hen. 

VIII.,  222. 
same,  form  used  in  Philadelpljia,  222. 
breaking   and  entering  a   close   and 

cutting  down  a  tree,  223. 
Foreign  minister,  indt.  for  offences  against 

assault  on,  574. 
threatening  bodily  harm  to    another 

in  his  presence,  576. 
arresting,  576. 
imprisoning,  577. 
issuing  process  against,  578. 
opening  and  publishing  letter  of,  579. 
Forestalling,  nature  of  offence,  587,  n. 

indt'.  lor,  587. 
Forgery,  general  form  of  indt.,  129. 
Requisites  of  indt. : 

in  what  forgery  consists,  129. 

alteration,  130. 

forged  instrument,  how  to  be  set  out, 

130. 
intent  to  defraud,  how  to  be  averred, 

136. 
Indictments : 

forging  at  common  law,  certificate  of 

an  officer  of  the  American  army  in 

1777,  that  he  had  received  certain 

stores,  137. 
publishing  the  same,  137. 
altering  at   common  law,  a  similar 

ccrtificate,  138. 
altering  and  defacing  a  registry  and 

record,  under  the  Pennsylvania  act 

of  1700,  139. 
forgery    at    common    law,    in    ante- 
dating a  mortgage  deed,  so  as  to 

take   place   of  a   prior    mortgage, 

141. 
forging  a  bill  of  exchange,  140. 
altering  same,  140. 
forging  an  acce])tancc  on  same,  140. 
forging  an  endorsement  on  same,  141. 
against  a  member  of  a  dissolved  firm 

for  forging  the  name  of  the  firm  to 

a  promissory  note,  143. 
separating  an   endorsement   of  part 

payment  from  back  of  nolo,  150. 
destroying  promissory  note,  212. 
forging  a  letter  of  attorney,  at  com- 
mon law,  143. 
uUeiiMg  a  forged  order,  at   common 

law,  144. 


INDEX. 


679 


Forgery,  forginsr  a  receipt  for  payment  of    Forgery,  diminishing  same,  175 


money,  146. 
same,  under  North  Carolina  statute, 

14G. 
same,  of  certificate  of  public  debt  in 

Massachusetts,  148. 
same,  of  fieri  facias,  at  common  law, 

148. 
same,  of  bond,  at  common  law,  149. 
altering  pedlar's  license,  at  common 

law,  151. 
forgery  of  a  certificate   granted  by 

collector  of  customs,  156. 
forging  a  note,  which  cannot  be  des- 
cribed in  consequence  of  destruc 
tion,  152. 
same,  where  note  is  in  defendant's 

possession,  152. 
same,  of  bond  in  defendant's  posses- 
sion, 153. 
forgery  at  common   law,  in  passing 

counterfeit  bank  notes,  15.3. 
forgery  of  a  foreign  bank  note,  as  a 
misdemeanor,  at  common  law,  154. 
passing  a  sham  bank  note,  as  a  mis- 
demeanor, at  common  law,  227. 
conspiracy  to  pass  same,  345. 
conspiracy  to  publish  forged  notes,  as 
same,  339-347. 


debasing,  same,   by   olhcer  in   mint, 

n5. 

uttering  counterfeit  half  guinea,  at 
common  law,  176. 

passing  counterfeit  French  coin,  at 
common  law,  176. 

counterfeiting  U.  8.  coin,  under  Ver- 
mont statute,  176. 

having  in  possession  coining  instiu- 
ments,  under  Massachusetts  Rev. 
Stat.  177. 

counterfeiting  coin,  under  same, 
177. 

having  in  custody  same,  under  same, 
177. 

uttering  and  passing  same,  under 
same,  178. 

making  or  being  possessed  of  any 
coining  tools,  under  same,  179. 

another  form  for  same,  179. 

coining,  &c.,  under  North  Carolina 
statute,  179. 
Fornication  and  bastardy,  in  South  Caroli- 
na, against  the  man,  586. 

same,  in  Pennsylvania,  586. 

same,  against  the  woman,  586. 
Fraudulent     insolvency    in     Pennsylvania, 
indl.for,  233. 


conspiracy  to  defraud  the  public,  by     Freight,  conspiracy  by  transporters  to  raise 

passing  same,  369.  tf'e  price  of,  indt.  for,  3d9. 

forgery  of  a  bank  note  and  uttering     Fugitive  slaves,  rescue  of,  indt.  for,  502 


same,  under  English  statute,  154 
forgery  of  a  treasury  note,  160. 
altering  a  bank  note,  162. 
having  forged  bank  notes  in  posses- 
sion, &,c.,  162. 
same  in  Massachusetts,  163. 
same  in  Vermont,  163. 
same  in  New  York,  168. 
uttering  a  note  forged  on  a  bank  in 

another  state,  in  Vermont,  165. 
having  in  possession  a  forged  note  of 
U.  S.  bank,  under  Vermont  statute, 
166. 
havintr  in  possession  a  forged  note  of 

a  corporation,  in  New  York,  167. 
forgery  of  an  instrument  for  payment 

of  money,  in  New  York,  168. 
forgery   of  a    note    of  incorporated 

bank,  in  Pennsylvania,  168. 
forgery  of  note  of  bank  of  another 

state,  in  Virginia,  169. 
forging  American  coin,  under  act  of 

congress,  170. 
passing  and  attempting  to  pass  the 

same,  171. 
forging    half   dollars,   under    same, 

172. 
passing  counterfeit  half  dollars,  under 

same,  172. 
having  coining  tools  in  possession,  at 

common  law,  173. 
forgiiig  foreign   coin,   under  act  of 

congress,  173. 
passing  same,  174. 


Fugitive  from  labour,  indt.    against    gaoler 
for  permitting  the  escape  of,  536. 

G 

Gambling  houses,  keeping,  nature  of  offence, 

437. 
requisites  of  and  for,  437,  n. 
See  "  Nuisance." 
Gaming. 

Indictments : 

keeping   gaming,  at   common   law, 

436-7. 
keeping  same,  and  playing  rouge  et 

noir,  437. 
keeping  same,  and  E.  O.  tables,  439. 
gaming    house,    form  used   in   New 

York,  439, 
gaming  by  cock  fighting,  in  Massa- 
chusetts, 434,  441. 
gaming  by  tavern-keeper,  &c.,  439- 

40-1-2-3. 
permitting  ninepins  to  be  played,  by 

same,  4 10. 
gambling,  under  Pennsylvania  act  of 

1847,  442. 
horse  racing,  «fec.,  443,  598. 
gaming  with  persons  of  colour,  &c., 

444. 
gaming  ^n  Alabama,  444. 
keeping  gambling  table  in  Alabama, 

444. 
winning  money  at  cards,  599. 
Gaming  hou.sc,  indt.  for,  436,  et  seq. 


680 


INDEX. 


l>:;oIer,  deputy,  assault  on,  indt.  for,  510, 
Gaoler,  indt.  against,  for  voluntary  escape, 

535. 
Gate,  erecting   across  highway,   indt.   for, 

404. 
Georgia,  commencement  and  conclusion  of 

indt.  in,  25. 
Going  armed,  &c.,  to  terror  of  people,  indt. 

for,  494. 
Goods,  description  of,  190. 
Goods,  rescuing,  indt.  for,  500. 
Grand  jury,  number  requisite  to  find  bill, 
1. 
plea  as  to  irregularity  in,  666. 
Guilty  intent,  how  to  be  set  forth,  11. 

plea  of,  see  "  Pleas.'''' 
Gunpowder,  keeping  in  city,  indt.  for,  425. 

H 

Hanging  a  man  in  effigy,  indt.  for,  56G. 
Harbours,    nuisances     to,    notes    concern- 
ing, 402. 
indt.  for  obstructing,  402,  420. 
High  constable,  indt.  against  for  not  attend- 
ing session,  524. 
Highways,  indt.  for  obstructing,  404,  et  seq. 

nuisances  to,  notes  concerning,  402. 
Hogs,  keeping  in  city,  indt.  for,  425. 
Homicide,  general  form  of  indt.,  42. 
same  in  U.  S.  courts,  87. 
general  requisites  of  indt,  42. 
malice  aforethouglit,  43. 
instrument  of  death,  43,  73. 
time  of  death,  45. 

death  occurring  in  another  state,  74. 
accessaries,  how  to  be  charged,  45. 
principals  in,  how  to  be  charged,  45. 
conclusion,  45-6,  74. 
Indictments: 

shooting  with  pistol,  47. 

against  principal,  in  first  and  second 

degrees,  for  shooting   slave,  with 

same,  48. 
against  principals,  in  first  and  second 

degrees,  for  shooting  with  gun,  76. 
striking  on  the  hip  with  knife,  tlie 

death   occurring  in  another  state, 

74. 
cutting  throat  with  knife,  48. 
stabbing  on  belly  with  same,  76. 
striking  neck  witii  axe,  73. 
against  slave  for  murder  with  axe,  75. 
striking    with    a    liatchet    on    high 

seas,  95. 
against  principal,  in  first  and  second 

degrees,  for  hanging,  49. 
second    count,    beating    and    hang- 

ing,  50. 
stamping,  kicking  and  beating,  67. 
beating   with   fists   and    kicking,  no 

mortal  wr)und  being  found,  69. 
striking  witii  a  poker,  51. 
striking   with   a  handspike    (on  the 

high  seas),  92. 


Homicide,  striking  with  a  glass  bottle  (in  a 
foreign  jurisdiction),  93. 

drowning,  51,  98. 

stabbing  and  drowning  on  hiofh  seas, 
69,  87. 

against  a  mother  for  drowning  her 
infant  child,  94. 

strangling,  52. 

choking,  against  principals  in  first  and 
second  degrees,  56. 

suffocating  infant,  67. 

poisoning  with  arsenic,  53,  57,  64. 

placing  poison  so  as  to  be  mistaken 
for  medicine,  61. 

poisoning  child  by  laudanum,  62. 

mixing  arsenic  in  wine  and  sending 
it  to  deceased,  63. 

giving  deceased  poison,  and  thereby 
aiding  her  in  suicide,  66. 

burning  a  house  in  which  deceased 
was  at  the  time,  54. 

giving  deceased  large  quantities  of 
spirituous  liquors,  &c.,  83. 

starving,  55. 

forcing  sick  person  into  street,  fiic, 
67. 

neglecting  to  supply  wife  with  shel- 
ter, 84. 

neglecting  to  supply  apprentice  with 
food,  79. 

killing  same  with  over  work,  79. 

neglecting  to  supply  infant  with 
clothes,  80. 

striking  with  stones,  70,  71,  72,  73. 

nianslaughter  by  same,  83. 

striking  with  a  cart,  84. 

striking  infant  with  dray  (involun- 
tary manslaughter),  86. 

riding  over  with  a  horse,  51. 

murder  of  bastard  child  by  strang- 
ling, 77. 

murder  by  throwing  in  privy,  78. 

by  smothering  in  linen  cloth,  78. 

same  in  Pennsylvania,  by  strangling, 
79. 

misdemeanor  in  concealing  death  of 
bastard  child,  under  the  Pennsyl- 
vania statute,  by  casting  it  in  a 
well,  99. 

same  where  means  of  concealment 
are  not  stated,  100. 

endeavour  to  conceal  the  birth  of 
dead  child  under  tiie  English  sta- 
tute,  101. 

against  captain  and  engineer  of  steam- 
boat, for  manslaughter  in  second 
degree,  in  New  York,  85. 

conspiracy  to  murder,  343. 
Horse  racing,  indt.  against  tavern-keeper  for 

holding,  443. 
House,  erecting  and  continuing,  part  being 

on  the  highway,  indt.  for,  405. 
House  of  ill-fanie,  see  "Disorderly  House" 
"Nuisance." 


INDEX. 


G81 


Illinois,  commencement  and  conclusion  of 

indt.  in,  29. 
Incestuous  marriage,  &.C.,  indt.  for,  585. 
Indecent  libels,  &.C.,  see  "  Obscene.,'"  6cc. 
Indiana,  commencement  and  conclusion  of 
indt.  in,  29. 
administering  medicine  with  intent 

to  produce  abortion,  113. 
carrying  a  dangerous  weapon,  496. 
disinterring  dead  body,  480. 
Indictment,  general  frame  of,   at  common 
law,  5. 
requisites  of,  5. 
name  of  defendant  in.  5. 
number  of  defendants,  6. 
addition  of  defendant,  7. 
mystery  of  defendant,  8. 
residence  of  defendant,  8. 
time,  8,  9. 
force  and  arms,  9. 
place,  9. 

name  of  prosecutor,  10. 
intent,  11,  136. 
conclusion,  11. 

joinders  of  several  counts,  12. 
Infectious  disease,  child  infected  with,  indt. 
against  a  person   for  exposing  in 
street,  428. 
person    infected   with,  indt.   against 
captuin  of  vessel  for  bringing  into 
port,  531. 
Information,  form  of  in  Connecticut,  20. 

in  LojjMMflMM^ 
Innholders,    indt.    against,    lor    permittmg 
gambling,  &c.,  439. 
indt.  against,  for  permitting  ninepins 

to  be  played,  440. 
indt.   against,   for    keeping   gaming 

cocks,  441. 
See  "  Tavern-keeper." 
Inquest,  not  appearing  at,  indt.  against  ju- 
ror for,  533. 
Insolvency,  fraudulent, -in  Pennsylvania,  233. 
Insolvent,"  indt.  against,  for  false  return  of 

creditors  and  estate,  295,  311. 
Instrument  of  writing,  how  to  be  set  forth, 

130. 
Insulting  justice  in  discharge  of  duties,  567. 
Insurers,  destroying  vessel  at   sea,  with  in- 
tent to  defraud,  &.C.,  274. 
conspiracy  to  do  the  same,  371. 
Insurrection,  attempt  to  foment  by  seditious 

letter,  indt.  for,  565. 
Intent  to   commit  offences,  see  "Assaults 
with  Intent." 
to  cheat,  how  to  be  averred  in  indt., 

11,  136. 
generally,  how  to  be  averred,  11. 
Interment  of  body,  preventing,  indt.  against, 

480. 
Intoxication,  see  "Drunkenness." 
Involuntary  manslaughter  in  Pennsylvania, 
indt.  for,  86. 


Jeopardt,  once  in,  plea  of,  664. 
Joinder  of  defendants,  6. 

of  offences,  12,  195. 
Judge  and  jury,  libel  on,  indt.  for,  556. 
Jurisdiction  of  U.  S.  courts,  how  averred, 
17,  97,  123. 
plea,  &.C.,  see  "Plea." 
Juror,  indt.  against,  for  not  appearing  when 

summoned  on  a  coroner's  inquest,  533. 
Jury,  grand,  see  "  Grand  Jury." 
Justice,  indt.  against,  for  committing  in  case 
where  he  had  «£  jurisdiction,  516. 
See  "Magistrate.'^ 

K 

Kentucky,  commencement  and  conclusion 
of  indt.  in,  29. 
violation  of  license  laws  in,  477. 
Kidnapping. 

Indictments : 

slaves  under  Massachusetts  act,  107. 
under  Pennsylvania  act,  107. 


Landmarks,  indt.  for  removing,  215. 
Larceny,  general  frame  of  indt.  for,  at  com- 
mon law,  190. 
requisites  of  indt.,  190-2-3. 

count  may  be  joined  with  count  for 
receiving  stolen  goods,  13,  195. 
Indictments : 

larceny  of  property  of  different  per- 
sons, 193. 

larceny  in  navy  yard,  194. 

larceny  on  high  seas,  194-5. 

larceny  in  an  American  ship,  at  Ba- 
hama Island,  195. 

larceny  in  New  York,  195. 

larceny  in  Penns^'lvania,  195. 

larceny  in  New  Jersey,  196. 

larceny  in  South  Carolina,  196. 

larceny  in  Michigan,  196. 

larceny  of  bank  note  in  North  Caro- 
lina, 196. 

larceny  of  bank  note  in  Pennsylvania, 
197. 

larceny  of  bank  note  in  Connecticut, 
197. 

larceny  of  bank  note  in  Tennessee, 
197. 

larceny  of  account  book  in   Massa- 
chusetts, 197. 

breaking  vessel  in  night  and  stealing, 
in  Massachusetts,  198. 

breaking  and  entering  dwelling  house, 
in  day,  (Sec,  in  same,  198. 

breaking  and  entering  shop,  in  night, 
in  same,  198. 

stealing  in  dwelling  house,  in  same, 
199. 

larceny,  &.C.,  of  public  property,  un- 
dci  "U.  S.  statute,  199. 


682 


IXDKX. 


Larceny  by  an  assistant  postmaster,  under 
same,  199,  632. 

larceny  of  slave,  in  Missouri,  200, 

same,  in  Alabama,  200. 

same,  in  Nortli  Carolina,  200. 

for  larceny  of  and  from  the  mail,  see 
"  Post  Office" 
Lasciviousness,  when  indictable,  423,  453, 
455. 

indts.  against,  454-5-6. 
Law  of  nations,  see  "  Foreign  Ministers.''^ 
Letter,  ojiening  and  publishing,  at  common 
law,  indt.  for,  579. 

stealing-,    opening,   embezzling,   &c., 
in  U.  S.  courts,  see  "  Post  Office." 
Letting  house  to  a  woman  of  ill-fame,  indt. 

for,  435, 
Levying  war,  indt.  for,  &c.,  636,  et  seq. 
Lewdness,  when  indictable,  423,  452,  455, 
453. 

open,  indt.  against,  454,  et  seq. 
Libellous  effigies,  indt.  against  exhibiting, 

447. 
Libel,  general  frame  of  indt.,  544-5. 

general  requisites  of  indt.,  545-6-7, 

as  to  name  of  prosecutor,  545. 

as  to  setting  out  libellous  matter,  545. 

where  the  instrument  is  lost,  546-9. 

where  it  is  in  a  foreign  language, 
546,  562-3. 

when  indecent,  &c.,  546. 

as  to  innuendo,  547. 
Indictments : 

writing  libellous  letter,  549. 

publishing  libellous  letter,  imputing 
crime  of  theft,  549. 

libel  on  a  person  deceased,  549, 

posting  a  man  as  a  scoundrel,  550. 

libel  on  an  attorney,  contained  in  a 
letter,  551. 

publisliing  an  exparte  statement  of 
an  examination  before  a  magis- 
trate, 551, 

writing  and  publishing  libel  against 
king  and  government,  551, 

libel  on  president  of  the  U,  S.  553-4. 

libel  on  senator  of  the  IJ.  S.  555. 

libel  on  a  judge  and  jury,  &.C.,  556. 

libel  on  slicritT,  attributing  to  him 
impro|)cr  motives,  &c.,  557. 

libel  on  justice  of  Police  Court,  &c., 
557. 

libel,  &c.,  when  the  alleged  libellous 
matter  was  in  defendant's  posses- 
sion, 559. 

seditious  libel,  &c.,  559. 

publishing  in  timeof  commotion  reso- 
lutions attacking  government,  561. 

seditious  libel  in  German,  562. 

libel  on  a  foreign  power,  in  French, 
5G3. 

sending  corrupt  proposals  in  a  letter 
to  commissioner  of  revenue,  5G4. 

writing  sedilir)us  letter,  with  intent 
to  excite  fresh  disturbances  in  a  dis- 
trict in  u  state  of  insurrection,  565. 


Libel,  hanging  a  man  in  effigy,  566. 

insulting  a  justice  in  discharge    of 

office,  indt.  for,  567. 
uttering  seditious  words,  568. 
uttering  blasphemous  language  as  to 

God,  570. 
blaspheming  Jesus  Christ,  570. 
blaspheming  the  Holy  Ghost,  570. 
composing  and  publishing  blaspheni- 

ous  libel,  571, 
composing   and    publishing    obscene 

libel,  572. 
composing   and   publishing  obscene 
pictures,  573. 
Liberty  pole,  indt.  against  attempt  to  raise 

an  insurrection  by,  648, 
License  laws,   violation    of,  see  "  Tippling 

Houses." 
Liquor,  selling  by  tlie  small,  see  "  Tippling 

Houses." 
Lord's  day,  see  "SWifcoM,"  » 

Lost  instrument,  how  pleaded,  546,561. 
Lotteries,   selling     lottery   tickets,   general 
frame  of  indt.,  481. 
general  requisites  of  indt.,  481-2. 
Indictments  against : 

where  ticket  is  lost  or  destroyed,  &c., 

482. 
in  New  Hampshire  generally,  482. 
same  in  Massachusetts,  482. 
advertising  ticket  in  same,  484. 
selling  ticket  in  same,  under  statute 

1825,  c.  18,  s.  1,484. 
^selling  ticket  in  New  York,  484. 

'erther  form  for  same,  485. 
promoting  lottery  in  same,  485. 
carrying  on  lottery,  whose  descrip- 

tion  is  unknown,  485, 
selling  lottery   policy  in  Pennsylva- 
nia, under  act  of  1847,  486, 
selling  ticket  in  same,  under  same, 

486. 
selling  ticket  in  same,  under  repealed 

act  of  1833,  486. 
selling  same  in  Virginia,  486, 
conspiracies  to  violate  the   laws  con- 
cerning, how  to  be  pleaded,  337. 
Lot,  public  nuisance  to,  indt.  for,  402. 
Louisiana,  commencement  and    conclusion 
of  indt.  in,  27. 
information  in,  27. 

M 

Magistrate,  indt.  against  for  committing 
where  he  had  no  jurisdiction,  516. 

indt.  against  for  neglect  of  duty  in 
riot,  517. 

indt.  against  for  proceeding  to  dis- 
charge duties  of  office  when  intoxi- 
cated, 519. 

Indt.  against  for  issuing  warrant 
without  oath,  519. 

indt.  against  for  refusal  to  deliver 
transcript,  &.C.,  520. 


INDEX. 


683 


Magistrate,  indt.  against  for  extortion,  520, 
indt.  ag-ainst  a  third  party  lor  insult- 
ing-, &c.,  567. 
Mail,  U.  S.,  ofTences  concerning,  see  "  Post 

Office:^ 
Maine,  commencement  and  conclusion  of  in- 
dictment in,  18. 
Maintenance,  indt.  for,  588. 
Malicious  mischief,  requisites  of  indt.,  &c., 
212. 
Indictments : 

wounding  a  cow,  212. 

killing  a  stcar,  213. 

killing  a  dog,  496. 

givinor     cantharides    to    prosecutor, 

212. 
tearing  up  a  promissory  note,  212. 
separating  an  endorsement  frorh  the 

back  of  promissory  note,  150. 
cutting  down  trees,  213-223, 
altering  mark  of  sheep,  214. 
pulling  down  fence,  215. 
destroying  lobster  cars,  &,c.,  215. 
removing  landmark,  215. 
felling  timber  in  channel  of  creek, 

215. 
firing  a  gun   info  house  of  aged  wo- 
man, and  killing  a  dog,  496. 
breaking  into  house  and  frightening 

pregnant  woman,  216. 
breaking  into    a   close  and    cutting 

down  tree,  223. 
cutting  ropes  across  ferry,  216. 
burning  a  record,  217. 
Manslaughter,  see  "  Homicide." 

indt.  for  murder,  how  changed  into 
indt.  for  manslaughter,  43, 
Indictments  : 

neglecting  to  supply  apprentice  with 

food,  79. 
exposing  an  infant  child  so  as  to  pro- 
duce death,  80. 
striking  with  stones,  82. 
giving  deceased   large  quantities   of 
spirituous  liquors  so   as   to   cause 
death,  83. 
driving  over  deceased  with  cart,  84. 
neglecting  to  provide  shelter  for  wife, 

84. 
permitting   steamboat  boiler   to  ex- 
plode  (manslaughter  in  2d  degree 
under  New  York  Rev.  Stat.)  85. 
by  drowning  on  high  seas,  98. 
involuntary  manslaughter   in   Penn- 
sylvania, 86. 
Mariner,  see  "Seamen." 
Marshal  of  U,  S.,  resistance  to,  indt  for, 

507. 
Maryland,  commencement  and  conclusion 

of  indt.  in,  23. 
Masquerade,  indt.  against,  443. 
Massachusetts,  commencement  and  conclu- 
sion of  indt.  in,  20, 
Indictments  in  : 

against    accessary    before    the    fact 
generally,  35. 


Massachusetts,  against  accessary  before  the 
fict  in  murder,  36. 

against  accessary  for  receiving  stolen 
goods,  40. 

mayhem  by  slitting  nose,  103. 

misdemeanor  in  kidnapping  a  slave, 
107. 

assault  and  battery,  115, 

felonious  assault,  126. 

forging  a  certificate  of  a  public  debt, 
148. 

being  possessed  of  ten  counterfeit 
bank  bills  at  the  same  time,  with 
intent  to  pass  the  same,  163. 

having  in  possession  coining  instru- 
ments, 177. 

counterfeiting  coin,  177, 

having  in  custody  counterfeit  coin, 
177. 

for  uttering  and  passing  counterfeit 
coin,  178. 

for  making  or  being  possessed  of  any 
tool,  &c.,  to  be  used  in  counterfeit- 
ing coin,  179. 

having  in  possession  an  instrument  to 
be  used  for  forgery,  Sec,  179. 

breaking  into  a  shop  not  adjoining 
dwelling  house  in  night  time  with 
intent  to  steal,  182. 

breaking  into  dwelling  house  not 
being  armed,  with  intent  to  com- 
mit larceny,  182. 

setting  fire  to  unfinished  dwelling 
house,  185. 

setting  fire  to  building,  whereby 
dwelling  house  is  burnt,  185. 

burning  incomplete  dwelling  house, 
185. 

attempting  to  set  fire  to  and  break 
into  house,  187. 

for  a  capital  robbery,  the  prisoner 
being  armed  with  a  dangerous 
weapon,  and  actually  striking  and 
wounding  the  person  assaulted  and 
robbed,  189. 

an  account  book  in,  197. 

breaking  and  entering  a  vessel  in  the 
night  time,  and  committing  a  lar- 
ceny therein,  198. 

breaking  and  entering  into  a  dwelling 
liouse  in  the  day  time,  not  being 
armed,  198. 

form  in  use  against  receiver  of  stolen 
goods,  202. 

embezzlement,  209, 

destroying  two  lobster  cars,  215, 

false  pretences,  243. 

perjury  in  a  trial  in  the  Supreme  Ju- 
dicial Court  of,  on  a  civil  action, 
294, 

endeavouring  to  suborn  a  person  to 
give  evidence  on  the  trial  of  an  ac- 
tion of  trespass,  issued  in  the  Su- 
preme Judicial  Court  of,  327. 

obstructing  townways,  411, 


684 


INDEX. 


Massachusetts,  disorderly  house,  &c.,  form 
in  use  in,  432. 
against  innholder  for  suffering  cards 

to  be  played,  438. 
against  same  for  allowing  ninepins, 
(Sl-c.,  to  be  played  on  his  premises, 
440. 
against  same  for  keeping  game-cocks, 

&,c.,  441. 
doing  business  on  Sunday,  445, 
lewdness  and  lascivious  cohabitation, 
first  count,  lascivious  behaviour  by 
lying  in  bed  openly  with  a  woman, 
454. 
against  the  inhabitants  of  a  town  for 
-      not  repairing  a  highway,  463. 
selling  liquor,  468. 
selling  liquor  without  license,  472. 
removal  of  a  dead  body,  478. 
selling  lottery  ticket,  483. 
disturbance  of  elections,  492. 
assault  on  police  officer,  512. 
against  a  justice  of  the  peace  for  ex- 
tortion generally,  520. 
libel  on  a  justice  of  the  Police  Court, 

557. 
polygamy,  531. 
adultery  against  both  parties  jointly, 

584. 
adultery  by  a  married  man  with   a 

married  woman,  584. 
breacli  of  pilot  laws,  599. 
treason,  650" 
Master,  indt.  against  for  abusing  apprentice 
or  servant,  529. 
confining  on   board  ship,   indt.  for, 
613. 
Mayhem,  general  requisites  of  indt.  for,  102. 
Indictments  : 

slitting  the  nose,  under  Coventry  act, 

102. 
slitting  the  nose,  under   Massachu- 
setts statute,  103. 
cutting  out  one  of  the  testicles,  under 

Pennsylvania  act,  104. 
biting  off  ear,  under  Alabama  act, 

105. 
biting  off  ear,  under  North  Carolina 
act,  106. 
Meat,   unwholesome,  indt.   against  offering 

for  sale,  446. 
Meeting,  seditious,  conspiracy  to  raise,  indt. 

for,  648. 
Merger,  when  conspiracies.  Sec,  merge  in 
felonies,  333. 
whether  misdemeanor  can  merge  in 
misdemeanor,  334. 
Michigan,  commencement  and  conclusion  of 
indt.  in,  27. 
larceny,  form  in  use  in,  196. 
Mill,  permitting  waters  of  to  overflow,  indt. 

for,  415. 
Minister,  foreign,  offences  against,  sec  "  For- 

cign  Minister" 
Mint,  U.  S.,  responsibility  of  officers  in,  206. 
indt.  agiinst  officer  of,  204. 


Misbehaviour,  sec  "  Misconduct  in  Office." 
Mischief,  see  "  Malicious  Mischitf." 
Misconduct  in  office. 
Indictments  : 

against  a  magistrate  for  committing 
in  a  case  where  he  had  no  jurisdic- 
tion, 516. 

against  same  for  neglect  of  duty  in 
riot,  517. 

against  same  for  proceeding  to  the 
duties  of  his  office  in  a  state  of  in- 
toxication, 519. 

against  same  for  issuing  a  warrant 
without  oath,  «&c.,  519. 

against  same  for  refusal  to  deliver 
transcript  to  party  demanding  it, 
520. 

against  justice  in  Massachusetts  for 
extorting  fees  for  discharging  a 
recognizance,  and  not  returning  it 
to  court  afterwards,  521. 

against  constable  for  extorting  money 
of  a  person  apprehended  under 
warrant,  &c.,  522. 

against  constable,  neglecting  to  exe- 
cute warrant,  522-3. 

against  constable  for  extortion  under 
colour  of  discharging  warrant,  523. 

against  constables  for  neglecting  to 
attend  sessions,  524. 

against  high  constable  for  not  obey- 
ing an  order  of  sessions,  524. 

against  toll  collector  for  extorting 
toll,  525. 

against  innkeeper  for  refusal  to  re- 
ceive guest,  526-7. 

against  an  attorney  for  buying  note, 
under  New  York  statute,  528. 

against  a  master  for  neglecting  to 
provide  an  apprentice  properly,  529. 

against  mistress  for  neglecting  to  pro- 
vide for  a  servant  properly,  530. 

against  captain  of  vessel  for  bringing 
into  port  a  person  with  infectious 
disease,  531. 

against  same  for  not  providing  suffi- 
cient food  for  passengers,  531. 

against  overseers  for  cruelty  to  pau- 
per, 532. 

against  juror  for  not  appearing  when 
sununoned  on  coz'oner's  inquest, 
533. 

for  refusing  to  serve  in  office  of  over- 
seer, 534. 

for  refusing  to  execute  the  office  of 
constable,  534-5. 

against  a  gaoler  for  a  voluntary  es- 
cape, 535. 

same  where  party  escaping  was  com- 
mitted by  a  judge  as  a  fugitive 
from  justice,  536. 

against  a  constable  for  negligent  es- 
cape, 539. 

against  prisoner  for  escaping  from 
same,  540. 


INDEX. 


685 


Misconduct  in  office,  asfainst  officer  of  ves- 
sel for  inflicting-  cruel  and  unusual 
punishment,  &c.,  540-1. 
ag-ainst  same  for  confining  boy  in  run 

of  ship,  54"2. 
against  same  for  withholding  suitable 

food,  542. 
against    same    for    forcing    seaman 

ashore  in  foreign  port,  543. 
against  same  for  leaving  seaman  in 
foreign  port,  543-4, 
Misdemeanor,  compounding,  514. 
nature  of  offence,  515. 
indt.  for,  515. 
Misnomer,  plea  of,  see  "  Plea.'''' 
Mississippi,  commencement  and  conclusion 
of  indt.  in,  26. 
violation  of  license  laws,  477. 
Missouri,  commencement  and  conclusion  of 
indt.  in,  31. 
larceny  of  a  slave  in,  200. 
Model  artists,  indt.  against,  450. 
Murder,  see,  "  Homicide,''''  '^Accessaries.'^ 
Mystery,  how  to  be  set  forth,  d. 

N 

Names,  how  to  be  pleaded,  5-10. 

how  to  be  in  conspiracy,  342. 
how  errors  in  to  be  excepted  to,  8. 
Nations,  law  of,  indts.  for,  violations  of. 

by  offences  to  person  of  foreign  min- 
ister, see  "  Foreign  Minister.^'' 
by    setting    on     foot     an    enterprise 

against  a  foreign  nation,  644. 
by  supplying  prisoners  of  war  with 
unwholesome  food,  654. 
Navigable   river,    obstructing,    see    "iVuis- 

ance." 
Negligence  in  office,  see  "  Misconduct." 
Negligent  escape,  indt.  for,  see  "  Escape.'''' 
Negroes,  see  "  Slaves,"  "  Slave  Trade." 
New  Hampshire,  commencement  and  con- 
clusion of  indt.  in,  18. 
Indictments  in : 

selling  lottery  tickets,  482. 
disinterring  dead  body,  479. 
selling  liquor  by  the  small,  467. 
refusing  to  repair  road,  462. 
New  Jersey,  commencement  and  conclusion 
of  indt.  in,  22. 
Indictments  in : 
larceny,   I'JG, 

selling  liquor  by  the  small,  474. 
New  York,  commencement  and  conclusion 
in,  22. 
Indictments  in  : 

manslaughter      in    second      degree 
against    captain    and    engineer  of 
steamboat,  85. 
abduction  under,  107. 
producing  abortion,  113. 
assault  and  battery  in,  116. 
assault  with  intent  to  murder,  126. 


New  York,  having  in  possession  forged  note 
of  a  corporation,  166. 

forging  an  instrument  for  payment 
of  money,  167, 

having  in  possession  forged  notes 
and  with  intent  to  defraud,  168. 

burglary,  182. 

larceny,  195. 
*    receiving  stolen  goods,  202. 

embezzlement,  210. 

secreting  goods  with  intent  to  de- 
fraud creditors,  229. 

false  pretences,  244. 

against  an  insolvent  for  a  false  re- 
turn of  his  creditors  and  estate, 
295. 

disorderly  house,  &c.,  431. 

keeping  a  common  bawdy  house, 
432. 

gaming  house,  438. 

violation  of  license  laws,  474, 

selling  lottery  ticket,  484. 

against  an  attorney  for  buying  a 
note,  528. 

bigamy,  582. 
Ninepins,  indt.  against    playing  in  Massa- 
chusetts, 440. 
North  Carolina,  commencement   and  con- 
clusion of  indt.  in,  24. 
Indictments  in,- 

forging  a  receipt,  145. 

assault  on  person  of  colour,  128, 

biting  off  an  ear,  106. 

altering  mark  of  a  sheep,  214, 

larceny  of  bank  note,  196. 

larceny  of  slave,  200. 

coining,  179. 

felling  timber  in  the  channel  of  a 
particular  creek  in  a  particular 
county,  215. 

negligently  permitting  fences  to  re- 
main during  the  crop  season  less 
than  five  feet  high,  421. 

exposing  the  private  parts  in  an  in- 
decent posture,  tiiere  being  no  alle- 
gation of  lookers  on,  453. 

against  overseer  for  refusing  to  re- 
pair road,  465. 

violation  of  license  laws,  476. 

bigamy,  582. 

adultery,  against  both  parties  jointly, 
585. 
Notes,  forgery  of,  indt.  for,  154,  et  seq. 

larceny  of,  196,  et  seq. 
Not  guilty,  see  '■'■Pleas." 
Nuisance,  general  frame  of  indt,  402. 

general  requisites  of  indt.,  402-422. 

what  defences  admissible  in  indt.  for. 
422. 

what  length  of  time,  422, 

what  public  benefit,  422, 

nuisances  to  highways,  bridges,  wa- 
ter-courses, or  navigable  rivers, 
notes  concerning,  402. 


58 


686 


INDEX. 


Indictments : 
Nuisance,  erecting  a  gate  across  a  public 
highway,  404. 

erecting  and  continuing  a  house, 
part  being  on  highway,  405. 

obstructing  a  common  highway  by 
placing  on  it  drays,  406. 

obstructing  same  by  filth,  406. 

letting  oiF  fire-works  in  the  public 
streets,  407. 

keeping  a  pond  of  stagnant  water  in 
city,  408. 

placing  foul  liquor  called  returns  on 
'the  road,  408. 

laying  dung  on  the  street,  408. 

letting  wagon  stand  in  street,  409. 

placing  casks  on  highway,  409. 

leaving  open  an  area  on  foot  pave- 
ment, 410. 

leaving  dirt  on  footway,  406-410. 

profane  swearing  in  public  streets, 
411. 

obstructing  townways  in  Massachu- 
setts, under  stat.  1786,  411. 

blocking  up  great  square  of  a  town- 
house  in  Pennsylvania,  412. 

erecting  a  wooden  building  on  public 
square  of  village  in  Vermont, 
413. 

throwing  dirt  on  public  lot,  413. 

stopping  an  ancient  water-course, 
&c.,  414-16. 

diverting  water-course  from  its  chan- 
nel, 414. 

obstructing  a  water-course  called 
Peg's  Run,  415. 

permitting  water  of  mill  to  overflow, 
415. 

erecting  a  dam  on  navigable  river, 
416. 

erecting  obstructions  on  navigable 
river,  417. 

obstructing  river  by  fish  traps,  418. 

obstructing  harbour  by  placing  in  it 
piles,  420. 

ncgligt^ntly  permitting  fences  to  re- 
main during  the  crop  season  less 
than  five  feet  higli,  under  North 
Carolina  stat.,  421. 

general  form  for  nuisances  in  carry- 
ing on  unwholesome  occupations, 
&c.,  421-22. 

disorderly  house,  requisites  of,  indt. 
for,  422,  431,ctseq. 

drunkenness,  notorious,  requisites  of, 
indt.  for,  423,  457. 

carrying  on  the  trade  of  a  trunk 
maker  near  to  houses,  &c.,  424. 

erecting  a  soap  manufactory  near 
highway,  424. 

keeping  gunpowder  in  a  city,  425. 

keeping  hogs  in  city,  425. 

boiling  bullocks'  blood  in  same, 
427. 


Nuisance,  keeping  distillery  in  public  streets, 
427. 

exposing  a  child  infected  with  small 
pox,  &.C.,  428. 

against  owners  of  land  for  erecting 
offensive  buildings,  429. 

keeping  a  privy  near  a  street,  430. 

same  near  an  adjoining  house,  430. 

disorderly  house,  form  used  in  New 
York,  431.     See  422. 

disorderly  house,  form  used  in  Massa- 
chusetts, 432. 

common  bawdy  house  in  same,  432. 

disorderly  house,  form  used  in  Phila- 
delphia, 433. 

another  form  for  same,  433. 

disorderly  house,  form  used  in  Ver- 
mont, 433. 

disorderly  house,  form  used  in  South 
Carolina,  435. 

disorderly  house  and  fighting  cocks, 
at  common  law,  434. 

letting  house  to  woman  of  ill-fame, 
&c.,  435. 

keeping  gaming  house,  at  common 
law,  436-7. 

keeping  same  and  rouge  et  noir  ta- 
ble, 437. 

keeping  same  and  E.  O.  table,  439. 

gaming  house,  form  used  in  New 
York,  439. 

gaming,  &-c.,  in  Pennsylvania,  442. 

against  innholder  in  Massachusetts 
for  cock-fighting,  441. 

against  innholder  for  suflfering  nine- 
pins to  be  played,  in  Massachu- 
setts, 440. 

against  tavern-keeper  for  permitting 
unlawful  gaming,  in  Pennsylvania, 
441. 

against  a  person  in  same  for  keepitig 
a  gambling  device  called  sweat- 
cloth,  442. 

profanation  of  Sabbath  by  keeping 
shop  on  Lord's  day,  444. 

keeping  open  shop,  &c.,  in  Charles- 
ton, 445. 

offering  putrid  meat  for  sale,  446. 

exhibiting  scandalous  effigies,  and 
thereby  collecting  a  crowd,  447. 

keeping  house  in  which  persons  ex- 
hibit themselves  as  model  artists, 
450. 

bathing  publicly,  &c.,  451. 

exposure  of  person,  &c.,  452,  et 
scq, 

lascivious  cohabitation  in  Massachu- 
setts, &c.,  4.54. 

lascivious  conduct,  &.C.,  in  same, 
454. 

lascivious  cohabitation  at  common 
law,  455. 

lewdness,  &.c  ,  by  man  and  woman, 
&c.,  456. 


INDEX. 


GS7 


Nuisance,  notorious  drunkenness,  457, 
common  scold,  457. 
barratry,  457. 
against  inliabitants  of  township  for 

not  repairing  highway,  458. 
against  county,  for  suffering   public 

bridge  to  decay,  459. 
against  inhabitants  of  parish  for  not 

repairing  common  higlnvay,  460. 
against  corporation  of  town  for  suf- 
fering   water-course     to     become 

filthy,  461. 
against  town  in  New  Hampshire  for 

refusing  to  repair,  462. 
against   same   in    Massachusetts  for 

not  repairing,  463. 
against    supervisor   in  Pennsylvania 

for  refusing  to  repair,  463. 
against  same   for  refusing   to   open 

road,  464. 
against  overseer   in  North   Carolina 

for  same,  465. 
against  commissioner  in  South  Care- 

lina  for  same,  465. 
against     overseer    in    Alabama    for 

same,  466. 

See  "  Tippling"   "Dead  Bodies," 
"Lotteries." 


0 


Obscene  libel,  indt.  for,  572. 

pictures,  indt.  for,  573. 
Offensive  trades,  see  "  Nuisance." 
Office,  refusal  to  serve   in,  indts.  for,  533-4. 
misconduct  in,  see  "Misconduct  in 
Office." 
Officers   of  justice,  resistance   to,  see  "Re- 
sistance" Sec. 
of  vessel,  indls.  against  for  miscon- 
duct, 531,  et  seq. 
Ohio,    commencement     and    conclusion    of 

indt.  in,  &c.,  28. 
Once  in  jeopardy,  plea  of,  664. 
Operatives,  see  "  Workmen." 
Opposition  to  officers  of  justice,  see  "Re- 
sistance to  Officers  of  Justice." 
Overseer  of  the  poor,  indt.  foi:  refusal  to 
serve  as,  534. 
indt. against  for  cruelty  to  pauper,  532. 
indt.  against  for  not  repairing  road, 
465,466. 
Overt  acts,  in  conspiracy,  nature  and  effect 

of,  343-6. 
Ownership,  in  burglary,  180. 
in  arson,  184. 
in  larceny,  192. 
in  forcible  entry,  219. 
Owner  of  land,  indt.  against  for  erecting 
offensive  buildings,  429. 


Parish,  indt.  against,  for  not  repairing  high- 
way, 459. 
requisites  of  indt.,  459. 


Particulars,  when  bill  of  will  be  ordered  in 

conspiracy,  336,  340,  344,  351. 
Party  injured,  how  name  to  be  set  out,  5-10. 

in  cons|)irac3%  342. 
Pauper,  cruelty  to,  indt.  for,  532. 
Pavement,   leaving   an   area  open   in,  indt. 

for,  410. 
Peace,  disturbance  or  breach  of,  see  "Riot." 
Peace  officer,  assault  on,  indt.  for,  513. 

resistance  to,  indt.  for,  506-9. 
Pennsylvania,  comtnciicemcnt    and   conclu- 
sion of  indt.  in,  22. 
Indictments  in  : 

inv(;lufitary  manslaughter,  by  strik- 
ing an  infant  with  a  dray,  86. 
misdemeanor  in  concealing  death  of 
bastard   child,  by  casting  it  in   a 
well,  99. 
mayliem  by  cutting  out  one  of  the 

testicles,  104. 
misdemeanor    in    seducing    away    a 

negro  from  the  state,  107. 
assault  and  battery,  117. 
forgery  by  altering  and  defacing   a 
certain   registry  and   record,  &,c., 
139. 
forgery  of  a  note  of  a  bank  incorpo- 
rated in,  168. 
burning  a  barrack  of  hay,  187. 
burning  a  stable,  187. 
larceny,  form  in  use,  195. 
larceny  of  bank  note,  197, 
against  receiver  of  stolen  goods  in, 

202. 
receiving    stolen    goods    from    some 

person  unknown,  203. 
removing  a  land-mark,  215. 
breaking   and  entering   a  close,  and 

cutting  down  a  tree,  223. 
secreting   goods   wilii   intent   to   de- 
fraud creditors,  229. 
fraudulent    insolvency,    first    count, 
pledging  goods  consigned,  and  ap- 
plying the  proceeds  to  defendant's 
use,  237, 
against  an  insolvent  in,  for  a  false 

account  of  his  estate,  299. 
for  blocking  up  the  great  square  of 

a  town  house  in,  412. 
disorderly  house,  433. 
against  tavern-keeper  for  permitting 

unlawful  gaming,  441, 
gambling,  first  count,  keeping  a  room 

for  gambling,  442. 
against  a  tavern-keeper  for  holding 

near  his  house  a  horse  race,  443. 
mascjuerade,  443. 

against  supervisor  for  refusing  to  re- 
pair road,  463. 
against    supervisor    for    refusing    to 

open  a  road,  464. 
violation  of  license  laws,  475. 
selling  lottery  policy,  486. 
selling  lottery  ticket,  486. 
interrupting  a  judge  of  the  election, 
492. 


688 


INDEX. 


Pennsylvania. 

against  a  justice  of  the  peace,  for  re- 
fusal to  deliver  transcript  to  party 
demanding  it,  520. 

against  tlie  captain  of  a  vessel,  for 
bringing  into  the  port  a  person 
with  an  infectious  disease,  531. 

bigamy  against  the  man,  5r2. 

bigamy  against  tlie  woman,  5i?2. 

adultery  against  the  man,  584. 

adultery  against  the  woman,  584. 

fornication  and  bastardy  against  the 
man,  5Ci6. 

fornication  and  bastardy  against  the 
woman,  586. 

against  a  person  for  liolding  vendue 
without  authority,  588. 
Perjury,  general  frame  of  indt.,  277. 

general  requisites  of  indt.,  277-8-9, 
311. 
Indictments : 

lalse  swearing,  alibi  to  a  felon,  277. 

false  swearing  as  to  age  in  procuring 
money  of  the  U.  S.  in  enlisting  in. 
navy,  2-3. 

as  to  a  false  entry  of  invoice,  284. 

justifying  bail  in  a  criminal  case,  289. 

giving  evidence  on  an  issue  on  an 
indt.  for  perjury,  293. 

in  a  civil  action  in  Massachusetts, 
294. 

against  an  insolvent  in  New  York, 
for  a  false  return  of  his  creditors, 
295. 

against  same  in  Pennsylvania,  for  a 
false  account  of  estate,  299. 

swearing  falsely  in  answer  to  inter- 
rogatories on  a  rule  to  show  cause 
why  an  attachment  shall  not  issue, 
300. 

same  in  charge  against  J.  K.  for  lar- 
cctiy,  before  a  justice  of  the  peace, 
304. 

same  in  a  charge  of  assault  and  bat- 
tery before  same,  306. 

same  in  a  charge  of  beastiality  be- 
fore same,  320. 

against  a  person  offering  to  vote,  for 
false  swearing  as  to  his  qualifica- 
tions, 307. 

false  swearing  in  an  affidavit  to  hold 
to  bail,  308. 

same  in  a  civil  cause,  where  the  de- 
fendant  swears  the  arrest  to  be 
illegal  (the  perjury  here  being  in 
swearing  to  what  the  defendant 
did  not  know  to  be  true),  308. 

false  swearing  in  an  answer  in  chan- 
cery, 312. 

same  before  a  grand  jury,  313. 

same  in  answer  to  interrogatories,  ex- 
hibited in  chancery,  316. 

same  at  a  writ  of  trial,  317. 

subornation  of  perjury  in  a  prosecu- 
tion for  fornication,  321. 


Perjury,  subornation  of,  on  a  trial  for  rob- 
bery, 322. 
same  in  an  action  of  trespass,  323. 
corruptly  endeavouring  to  influence 

a  witness  in  the  U.  S.  courts,  324. 
same,  to  withdraw  himself  from  the 

prosecution  of  a  felon,  325. 
same,  not  to  give  evidence  before  a 

grand  jury,  326. 
same,  to  withhold  his  evidence  as  to 

execution  of  deed  of  trust,  326. 
same,  to  suborn  him  to  give  evidence 

in   a  civil  case  in  Massachusetts, 

327. 
soliciting  a  woman  falsely  to  swear 

a  child  upon  a  man,  328. 
soliciting  a  witness  to  disobey  a  sub- 
poena before  grand  jury,  32S. 
conspiring    to    induce    a   witness    to 

witJihold  his  testimony,  401. 
Person,  exposure  of,  indts.  against,  451, etseq. 
Personation  of  bail,  indt.  for,  229. 
Pictures,  obscene,  indt.  for  exhibiting,  573. 
Pigs,  a  nuisance  in  a  city,  599. 
Pilot  laws,  breach  of,  indt.  for,  599. 
Piracy,  breaking  and  boarding  ship,  &,c.,  and 

stealing  cargo,  indt.  for,  616. 
breaking  into  ship  and  running  away 

with  her,  616. 
laying  violent  hands  on  a  commander 

of  vessel,  &c.,  617. 
confining  same,  613. 
attempting  to  corrupt  seaman  to  turn 

marauder,  &c.,  617. 
against  accessary  to,  before  the  fact, 

618. 
against  accessary  to,  after  the  fact, 

619. 
See  "  Revolt,"  "Slave  Trade,"  &c. 
Pleas,  not  guilty  of  treason  or  felony,  655. 
not  guilty  in  misdemeanor,  655. 
similiter  generally,  655. 
want  of  addition,  655. 
misnomer,  656. 
wrong  addition,  656. 
want  of  jurisdiction,  657. 
special,  generally,  657. 
replication  to  same,  657. 
rejoinder  to  same,  658. 
autrefois  acquit,  658. 
demurrer  to  same,  660. 
autrefois  convict,  (where  the  original 

indt.  on  which  the  defendant  was 

convicted,  was  one  for  arson,  and 

the  second  indt.  was  for  murder  in 

burning  a  house  whereby  one  J.  H. 

was  killed,  &c.,)  661. 
replication  and  rejoinder  to  same,  663. 
once  in  jeopardy,  664. 
irregularity  in  grand  jury,  666. 
that  goods  defendant   was    charged 

with  rescuing,  belonged  to  a  third 

party,  667. 
replication  to  same,  669. 
demurrer  to  an  indt.  or  information, 

669. 


INDEX. 


689 


Pleas,  demurrer  to,  670. 

demurrer  to  plea  of  autrefois  acquit, 

670. 
joinder  in  demurrer  to  same,  671. 
Poison,  administerinir,  with  iutent  to  mur- 
der, indt.  for,  607. 
murder  by,  see  '' Homicide." 
Police  officers,  assault  on,  indt.  for,  512. 
Polyg-amj,  indts.  for,  5^1-3. 
Posting  another,  &c.,  indt.  for,  550,  603. 
Postmaster,  indt.  against  for  stealing  mail, 

&.C.,  199,  632. 
Post  office,  offences  against, — 
Iwliclineiits : 

mail  robbery,  627. 
obstructing  mail,  &c.,  629. 
opening  letter  in  mail,  629,  630-1. 
secreting,   embezzling    and    stealing 
letter  containing  money,  «!tc.,  632, 
et  seq. 
procuring    persons    connected    with 
mail  to  secrete  it,  634. 
President  of  U.  S.,  indt.  for  libel  on,  553. 
Presuming  to  be  a  seller  of  wine,  &,c.,  indt. 

against,  466,  472. 
Principal  and  accessary,  see  ^^ Accessary.'''' 
Principals  in  first  and  second  degrees, — 
Indictments: 

in  suicide,  37-66. 

for  choking  deceased,  56. 

for  shooting   negro  slave  with  pistol, 

48. 
for  shooting  with  gun,  76. 
Prison  breach,  indt.  for,  503. 
Prisoners,   indt.   against,,  for  conspiring   to 
escape,  368. 
rescuing,  indt.  for,  499. 
of  war,  supplying  unwholesome  food 
to,  indt.  for,  654. 
Private  roads,  what  to  be  considered  such, 

403. 
Privy,  indt.  for  exposing,  &c.,  430. 
Profanit}',  indt.  for  as  a  nuisance,  411.  ' 

See  ^^  Bl/isphemy." 
Prosecution,   compromise  of,  how  far  pun- 

ishable,  514. 
Prosecutor's  name,  how  to  be  set  out,  10. 
Public  highways  and  bridges,  see   "  Nuis- 
ance." 
Public  lot,  nuisance  to,  indt.  for,  413. 
nuisance,  see  "Nuisance." 
square,  see  '■'Nuisance"  412. 
Publishing    forged    instruments,    &c.,    see 

"  For(Terij." 
Punishment,  cruel  and  unusual,  indt.  against 
captain  for  inflicting  on  crew,  540. 
See  "Seamen." 


Q 

Quickness,  how  far  essential  to  offence  of 
abortion,  108-9. 


58' 


R 


Racing,  indts.  for,  443,  598. 

betting  at,  indt.  for,  598. 
Rape,  general  form  of  indt.,  iUl. 

requisites  of  indt.,  101. 
Rebellion,  see  "Sedition  "  "  Treason." 
Receiving  goods  obtained  by  false  pretences, 

indt,  for,  273. 
Receiving   stolen   goods,  general    frame   of 
indt,  201. 
where  counts  for  may  be  joined  with 

counts  for  larceny,  12,  195. 
general  requisites  of  offence,  201. 
Indictments : 

receiving  goods  stolen  by  a  slave,  201 . 
receiving  stolen  goods  in  Massachu- 
setts, 202. 
same  in  New  York,  202. 
same  in  Pennsylvania,  202-3. 
same  in  South  Carolina,  203. 
same  in  1'ennessee,  203. 
soliciting  a  servant  to  steal,  and  re- 
ceiving stolen  goods,  at  common 
law,  204. 
Record,  indt.  for  burning,  217. 
forging,  see  "  Forgery." 
Refusal  to  serve  in  office,  indts.  for,  533-4. 
Regrating,  nature  of  offence,  587,  n. 
indt.  for,  587. 
Rejoinder,  see  "Pleas." 
Religious   meeting,    disturbing,    indt.    for, 

493-4. 
Replications,  see  "Pleas." 
Rescue, — 

Indictments : 

against    two,    on    being   in    custody 

under  process,  499. 
rescue  of  goods  seized  as  distress  for 

rent,  &c.,  5i.0-l-2. 
rescuing  goods  seized  in  distress  or 

in  execution,  500-2. 
rescuing  fugitive  slaves,  &c.,  502. 
Rescue  of  goods,  plea  to,  averring  property 

in  another,  6G7. 
Residence  of  defendant,  how  to  be  set  out,  8. 
Resistance  to  officers  of  justice, — 
Indictments  : 

assault  on  constable  in  execution  of 

office,  504-5-6. 
resistance  to  constable,  506. 
resistance  to,  and  arresting  fugitive, 

506. 
resistance  to  peace  officer  in  execu- 
tion of  offiee,  506. 
resistance  to  marshal  of  U.  S.  in  ser- 
vice of  writ,  507. 
assault,  with  intent  to  obstruct  the 
apprehension   of  a    party  charged 
with  an  oti'encc,  5  J9. 
assault  on  deputy  gaoler  in  execution 

of  office,  510. 
resistance  to  sheriff  ia  execution  of 

office,  510. 
assault  on   police   officer   of  City  of 
Boston,  512. 


600 


INDf-X. 


Resistance,  &.C.,  assault  on  a  person  specially 
deputized  by  a  justice  of  the  peace 
to  serve  a  warrant,  512. 

assault  on  peace  or  revenue  officer, 
&,c.,  513. 

resisting  an  officer  of  customs,  &c., 
513. 
Retail,    selling    liquor    by,    see    "  Tippling 

Hnuses." 
Revenue  officers,  assault  on,  indt.  for,  513. 

laws,    violation    of,    by   smuggling, 
indt.  for,  634. 

laws,  conspiring  to  evade,  indt.  for,  370. 
Reversions,  owners  of,  how   far  indictable 

for  nuisance,  423. 
Revolt,  making,  indt.  for,  608, 

requisites  of  indt.,  608,  n. 

endeavouring  to  make,&c.,  indt.,  &c., 
611. 

rioting  on  board  ship,  &c.,  indt.  for, 
613. 

confining  master,  &c.,  indt.  for,  613. 

laying  violent  hands  on  same,  indt. 
for,  617. 

See  ^'^ Piracy ^^  '■'■Slave  Trade." 
Rhode  Island,  commencement   and  conclu- 
sion  of  indt.  in,  21. 
Ivdictments  in,  for: 

violation  of  license  laws,  473. 

treason  against,  650. 
Riot  act,  indt.  against  magistrate  for   not 

reading,  »&,c.,  517. 
Riot,  general  frame  of  indt.  for,  487. 

requisites  of  indts.  for,  487. 
Indiciments  for : 

affray  at  common  law,  489. 

unlawful  assembly  and  assault,  489. 

riot  and  bawling  away  wagon,  490. 

riot  and  breaking  windows  of  a  man's 
house,  490. 

same  and  pulling  down  house,  490. 

same  and  false  imprisonment,  491. 

disturbing  the   peace   on  land   occu- 
pied by  U.  S.  as  an  arsenal,  491. 

disturbance  of  election  in  Massachu- 
setts, 492. 

interrupting    judges   of  election    in 
Pennsylvania,  492. 

disturbing  religious  meeting  in  Vir- 
ginia, 493. 

disturbing   congregation    in    church, 
at  common  law,  4!)3. 

disturbing  congregation  in  dwelling 
house,  493. 

disturbing  same  by  dressing  in  wo- 
man's clothes,  494. 

going  around  to  terror  of  people,  at 
common  law,  495. 

currying    dangerous   weapon,   under 
Indiana  statute,  496. 

firing  guns  into  house  of  aged  wo- 
man, &,c.,  496. 

breach  of  peace,  tumultuous  conduct, 
&.C.,  in  Vermont,  4!l6. 

refusing  to  aid  constabld  in  quelling 
riot,  497. 


Riot,  refusing  to  aid  a  constable  in  carrying 

offi;nder  to  prison,  498. 
refusing  to  aid  constable  in  serving 

capias  ad  respondendum,  508. 
riot   and    rescue   of  fugitive  slaves, 

&c.,  502. 
riot  on  board  ship,  613. 
See    "Prison    Breach"    "Rescue" 

"  Resistance  to  Officers  of  Justice" 

Slc, 
River,  nuisances  to,  see  "Nuisance." 
Roads,  nuisances  to,  notes  concerning,  403. 
refusal  to  repair,  &c.,  (notes  concern- 

ing),  458-9. 
public,  what  to  be  considered  such, 

403. 
See  "Nuisance  "  for  indts.  generally. 
Robbery,  general  form  of  indt.  at  common 

law,  189. 
requisites  of  indt.  for,  189. 
indt.  for  capital  robbery  in  Massachu- 
setts, &c.,  189. 
conspiracy  to  rob,  indt.  for,  343. 
robbery  of  mail,  indts.  for,  627,  et 

seq. 


Sabbath,  profanation  of,  indt.  against,  444, 

445-6. 
Scold,  common,  indt.  against,  457. 
Seaman,  leaving  in  foreign  port,  543. 

inflicting  cruel  and   unusual  punish- 
ment on,  indt.  against  officer  ibr, 
540. 
beating  and  wounding,  &,c.,  541. 
confining  in  hold  of  ship,  542. 
withholding  suitable  food  from,  542. 
forcing  on  shore  in  foreign  port,  543. 
(For    indictments   against  seamen 
for  revolt,  misconduct,  &c.,  see 
"  Revolt  "  "  Piracy.") 
Secreting  goods  with  intent  to  defraud  cre- 
ditors, 229-238. 
requisites  of  indt.,  231-238. 
indts.  for  same  under  statute,  231-2. 
conspiracies  to  effect  the  same,  how 

to  be  pleaded,  238. 
indt.  for  same  at  common  law,  377, 
Sedition  generally,   conspiracies   to    e-xcite, 

()'16,  et  seq. 
Seditious  writings,  indts.  for,  551,  et   seq., 
559-61-65. 
words,  indts.  for,  569,  et  seq. 
Seducing  slave,  indt.  for  under  Pennsylvania 
act,  107. 
indt.  for,  under  N.  Carolina  act,  200. 
a  young  woman,  conspiracy  to  effect, 
"339,  379,  3bl. 
Selling  by  false  weight,  indt.  for,  224. 

of  wife,  conspiracy  to  effect,  indt.  for, 
586,  n. 
Service  of  writ,  obstructing,  indt.  for,  507, 

Sherilf,  libel  on,  indt.  fijr,  557. 


INDEX. 


691 


Ship,  running  away  with,  <fcc.,  see  '■^Revolt^^ 

«fcc. 
Slave  trade,  violation  of  laws  concerning, 
619,  et  seq. 
fitting,  equipping  and  preparing  ves- 
sel, &,c.,  619-623. 
serving  on  vessel,  621-2. 
forcibly  confining  negroes,  &c.,  623. 
taking  on  board  negroes,  &,c.,  625. 
forcibly  carrying  away  same,  626. 
Slaves,  fugitive,  rescue  of,  indt.  for,  .502. 
Indictments  concerning  slaves: 

against  principals  in  first  and  second 

degrees    for    shooting    slave    with 

pistol,  48. 

against  slave  for  murder  with  axe,  75. 

seducing  slave,  under  Pennsylvania 

act,  107. 
seducing  slave,  under  N.  C.  act,  200, 
stealing  slaves  in  Missouri,  200. 
stealing  slaves  in  Alabama,  2U0. 
stealing  slaves  in  North  Carolina,  200. 
receiving  goods  stolen  by,  201. 
Slitting  nose,  indt.  for,  102. 
Small,    selling    Liquor    by,    see    "  Tippling 

Huuses." 
Small-pox,  exposing  a  child   infected  with, 

indt.  for,  428. 
Smuggling,  indt.  for,  634-5. 
Soap  boiling,  indt.  against,  424. 
Sodomy,  general  form  of  indt.  for,  102. 

requisites  of  indt.,  102. 
Soldiers,  enticing  to  desert,  indt.  for,  653. 
Solicitation    of    chastity,    indicted    in    this 

country,  422. 
Soliciting,  offences  how  far  indictable,  422-3. 
servant  to  steal,  &c.,  204. 
witness  to  withhold  testimony,  &c., 
see''''Atlempts  to  Commit  O/fences." 
South  Carolina,  commencement  and  conclu- 
sion of  indt.  in,  25. 
Indictments  in : 

assault  with  intent  to  murder,  127. 
larceny,  196. 

receiving  stolen  goods  from  some  un- 
known person,  203. 
disorderly  house,  425. 
gaming  with  people  of  colour,  444. 
against  commissioner  for  refusing  to 

repair  road,  405. 
fornication  and  bastardy,  against  the 
man,  586. 
Special  pleas,  see  "  Pleas." 
Square,  public,  indt.  for  blocking  up,  412-13. 
State,  foreign,  enterprise  against,  indts.  for, 

644. 
State,  treason  against,  sec  "  Treason." 

(See  generally  U.  States,  and  seve- 
ral slates  nominatim). 
Stealing,  see  "  Larceny." 
Stolen    goods,    receiving,    see    "  Receiving 

Stolen  Goods." 
Streets,  nuisances  in,  notes  concerning,  (see 

"  Nuisiincp")  402. 
Subornation  of  perjury  in    prosecution   for 
fornication,  indt.  for,  321. 


Subornation  of  perjury  in  prosecution  for  rob- 
bcry,  indt.,  322. 

of  perjury  in  action  for  trespass,  323. 

corruptly  endeavouring  to  intluence 
a  witness  in  U.S.  courts,  indt., 324. 

corruptly  endeavouring  to  entice  a 
witness  to  withdraw  from  prosecu- 
tion of  felon,  indt.,  325. 

corruptly  endeavouring  to  entice  a 
witness  not  to  give  evidence  before 
a  grand  jury,  indt.,  326. 

corruptly  endeavouring  to  entice  a 
witness  to  withhold  his  testimony 
as  to  execution  of  deed,  indt.,  326. 

corruptly  endeavouring  to  entice  a 
witness  to  disobey  a  subpoena  be- 
fore grand  jury,  indt.,  328. 

corruptly  endeavouring  to  suborn  a 
witness  to  give  evidence  on  trial  of 
an  action  of  trespass,  indt.,  327. 

corruptly  endeavouring  to  suborn  a 
witness  to  commit  perjury  in  falsely 
swearing  a  child  on  a  man,  indt., 
327. 
Suicide,  indt.  against  party  aiding  suicide, 
as   principal  in  second  degree,  37. 

giving  deceased  poison,  and  thereby 
aiding  her  in  suicide,  66. 

what  constitutes  guilty   agency   in, 
38,  06. 
Sunday,  profanation  of,  indt.,  444-45-46. 
Supervisor,   indt.   against    for    not    opening 

road,  464. 
Swearing,  profane,  indt.  for  as  a  nuisance, 
411. 


Tavern-keeper,  indt.  against  for  not  receiv- 
ing travellers,  &c.,  526. 
indt.  against  for  permitting  unlawful 
gaming, 'see  '■^Gaming." 
Tax  collector,  fraudulent  insolvency  of,  235. 
Tennessee,  commencement  and  conclusion 
of  indt.  fn,  .30. 
Indictments  in  : 

larceny  of  bank  note,  197. 
receiving  stolen  goods  from  some  un- 
known f)erson,  203. 
violation  of  license  laws,  477. 
Tenor,  what  required  by,  130. 
"Then  and  there,"  how  tar  necessary,  10. 
Ticket  in  lottery,  see  "  Lottery." 
Timber,  indt.  for  felling  in  creek,  215. 
Time,  how  to  be  pleaded,  8,  9. 

no  defence  to  indt.  for  nuisance,  422. 
Tippling  houses, — 
Indictments : 

presuming  to  be  a  common  seller  of 

wine  in  Maine,  466. 
selling    liquor     by    retail    in    New 

Hampshire,  467. 
dealing   in   liquor   without  license  in 

Vermont,  467. 
selling  liquor  by  the  small  in  same, 
467. 


692 


IXDEX. 


Tippling  houses,  selling  liquor  under  Mas- 
sachusetts Rev.  Stat.,  468-9-70-1- 
2-3. 

violation  of  license  laws  in  Rhode 
Island,  473 

same  in  New  York,  474. 

same  in  New  Jersey,  474. 

same  in  Pennsylvania,  475. 

same  in  Virginia,  476. 

same  in  North  Carolina,  476. 

same  in  Alabama,  476. 

same  in  Kentucky,  477. 

same  in  Tennessee,  477. 

same  in  Mississippi,  477. 
Token,  flilse,  see  "  False  Pretences"  ^'■Cheats 

at  Common  Law,''''  &c. 
Toll,  collector,  indt.  against  for  extortion, 
.525. 

conspiracies  to  raise  the  price  of,  389. 
Township,  indt.   against  for  not  repairing 
higlivvay,  45S-9-60. 

how  indt.  must  be  drawn,  459. 
Transcript,  refusal  to  deliver,  indt.  against 

magistrate  for,  520. 
Treason,  indts.  for,  requisites  of  same,  636. 

by  levying  war,  &c.,  637—8. 

same  by  adhering  to  and  giving  aid 
and  comfort  to  enemies  of  tJ.  S., 
639. 

same  with  overt  acts  specially  plead- 
ed, consisting  of  sending  provisions 
to  a  vessel  of  the  enemy,  640. 

illegal  outfit  of  vessel  against  foreign 
nation,  644. 

setting  on  foot  an  enterprise  against 
a  foreign  nation,  644. 

conspiracy  to  impede  the  operation 
of  certain  acts  of  congress,  646. 

conspiracy  to  raise  an  insurrection 
against  the  U.  S.,  647. 

conspiracy  to  assemble  a  seditious 
meeting,  648. 

treason  against  a  particular  state 
(Massacimsetts),  by  levying  war 
against  same,  650. 

same  against  same  (Rhode  Island), 
by  conspiring  to  excite  insurrec- 
tion, 650. 

same  iigainst  a  state  before  the  for- 
m.ition  of  the  federal  government, 

6.->a. 

misdemeanor  in  going  into  City  of 
Philadclpliia  when  in  enemy's  pos- 
session, 653. 
Tree,  indt.  for  cutting  down,  &c.,  213,  223. 
Trespass,  sec  "  Malicious  Mischief." 
Trial,  exparte  statement  of,  indt.  for  publish- 
ing, 551. 


u 

Underwriters,  defrauding  by  destroying  ves- 
sel at  sea,  274. 
conspiracy  to  do  same,  371. 


United  States   courts,  commencements  and 
conclusions  of  indts.  in,  14. 

commencement  in  Massachusetts 
where  the  offence  was  committed 
on  board  of  an  American  vessel, 
within  the  jurisdiction  of  a  foreign 
state,  14. 

same  where  the  offence  was  commit- 
ted on  an  American  vessel  within 
the  jurisdiction  of  the  U.  S.,  15. 

same  where  the  offence  was  commit- 
ted on  the  high  seas  on  board  of  an 
American  vessel,  15. 

same  where  offence  was  committed 
on  high  seas  on  board  a  vessel 
whose  name  was  unknown,  belong- 
ing to  an  American  citizen  whose 
name  is  given,  15. 

same  where  offence  was  committed 
by  a  person  belonging  to  a  vessel 
owned  by  American  citizens  who^^e 
names  are  known,  the  vessel  at  the 
time  lying  in  tiie  jurisdiction  of  a 
foreign  state,  15. 

same  where  offence  was  committed 
in  navy  yard,  16. 

same  where  offence  was  committed 
in  arsenal  or  armory,  16. 

commencement  in  Southern  District 
of  New  York,  16. 

commencement  in  Eastern  District 
of  Pennsylvania,  16. 

commencement  in  District  of  Vir- 
ginia, 16. 

conclusion  in  District  of  Massachu- 
setts, 17. 

conclusion  in  Southern  District  of 
New  York,  17. 

conclusion  in  Eastern  District  of 
Pennsylvania,  17. 

conclusion  in  District  of  Virginia,  17. 

final  count  averring  jurisdiction  in, 
17,97,  123. 

final  count  where  the  offender  was 
first  apprehended  in  the  particular 
district,  17. 

final  count  where  the  offender  was 
first  brougiit  into  the  particular 
district,  18,  97,  123. 

stabbing  and  drowning  on  high  seas, 
69. 

another  form  for  same,  with  com- 
mencement and  conclusion  as 
adopted  in  Now  York,  87. 

murder  by  striking  witli  a  handspike, 
with  coniinenceinent  and  conclu- 
sion as  adopted  in  Pennsylvania, 
92. 

murder  by  strilung  with  a  glass  bot- 
tle on  forehead,  with  commence- 
ment and  eouchision  as  adopted  in 
Massachusetts,  93. 

muidcr  against  a  niotlier  for  drown- 
ing her  child  on  Long  Island  Sound, 
94. 

murder  with  a  hatchet,  95. 


INDEX. 


693 


United    Slates     courts,    manslaughter     by 
drowning,  98, 
assault  witli  beating  and  wounding 

on  high  seas,  120, 
assault  on  high  seas  by  binding  pros- 
ecutor  and   forcing   an    iron    bolt 
down  his  throat,  120, 
same  with  dangerous  weapon,  121. 
another  form  for  same,  122. 
same    in   foreign  port,   the    weapon 

being  a  Spanish  knife,  123. 
forging  a  certificate  granted  by  col- 
lector of  customs,  156, 
forging  ;ind  counterfeiting  American 

coin,  170. 
passing  same,  171. 
attempting  to  pass  the  same,  171. 
forging,  &,c.,  half  dollars,  172. 
passing  same,  172. 
forging  foreign  coin,  173, 
passing  same,  174. 
debasing  U.  S.  coin  by  person  em- 
ployed in  mint,  175. 
diminishing  same,  175. 
larceny  in  navy  yard  of  U.  S.,  193. 
larceny  on  high  seas,  193-4. 
larceny  on  American  ship  at  the  Ba- 
hama Islands,  195. 
larceny    by    assistant  postmaster    of 

money,  &c.,  199. 
larceny  of  public  property  of  U,  S,, 

199. 
destroying  vessel  at  sea  with  intent 

to  defraud  underwriters,  274. 
false  swearing  by  party  enlisting,  283, 
false  swearing  at  custom  house,  284, 
false  swearing   in  justifying  to  bail 

after  indt.  found,  2c^9, 
disturbing  peace,  &-c.,  on  ground  oc- 
cupied as  an  arsenal,  491, 
against  officer  of  vessel  for  inflicting 
cruel    or  unusual    punishment   on 
one  of  the  crew,  540, 
against  same  for  confining  a  boy  in 

the  run  of  a  ship,  542. 
against  same    for    refusing   suitable 

food,  542, 
against    same    for   forcing    seamen 

ashore  in  a  foreign  port,  543, 
against  same  for  leaving  seamen  in  a 

foreign  port,  543, 
offences   against   foreign    ministers, 

575,  et  seq. 
bribery  of  judge  of  U.  S.,  593. 
making  revolt,  608. 
endeavouring  to  make  same,  611. 
rioting  on  board  ship,  613. 
confining  master,  613. 
piratically  running  away  with  vessel, 

614. 

breaking  and  boarding  ship,  &c.,  616. 

against    seaman    for    laying    violent 

hands  on  his  commander,  &c,,  617. 

attempting  to  corrupt  seaman,  &-c,, 

617. 


United  States  courts,  against  accessary  to 
piracy  before  the  fact,  618, 
against  accessary  to  piracy  after  the 

fact,  619, 
offences  against  laws  prohibiting  the 

slave  trade,  619,  et  seq. 
taking  on  board  negroes  from  Africa, 
for  the  purpose  of  enslaving  them, 
625. 
forcibly   carrying   same  from   same, 

for  same,  626. 
mail  robbery,  &c,,  627,  et  seq. 
obstructing  mail,  &c,,  629, 
opening  letters  in  same,  629-30-32, 
stealing  letter  from  same,  629-30-31 

-32, 
secreting  and  embezzling  from  U,  S, 
mail  letter,  by  person   connected 
with  same,  632, 
smuggling,  &c.,  634. 
treason  by  levying  war,  636. 
"  Unknown,"  how  person  described  as  such 

may  be  substantiated,  10. 
Unlawful  assembly,  &,c.,  indt,  for,  489, 
Unusual    punishment,    indt.    against  officer 

of  vessel  for  inflicting,  540,  et  seq. 
Unwholesome  meat,  indt,   against  offering 
for  sale,  446, 
occupations,  &,c.,  indt,  against,  421. 
food,  see  "  Nuisance." 
food,  supplying  to  prisoners  of  war, 
indt.  for,  654. 


Value  of  goods,  how  to  be  set  forth,  191. 
Vendue,  holding  without  authority,  indt,  for, 

588. 
Vermont,  commencement  and  conclusion  of 
indt,  in,  19, 
Indictments  in : 

polygamy,     where    both    marriages 

were  in  other  states  than  that  in 

which  the  offence  is  indicted,  5b3. 

breacli  of  peace,  tumultuous  conduct, 

&c,,  496. 
exposing  the  private  parts  in  an  in- 

decent  posture,  452. 
erecting  a  wooden  building  on  a  pub- 
lic square  of  a  village  in,  413, 
uttering   and    passing   a    counterfeit 

bank  bill,  163. 
having  in  possession   forged   note  of 

U.  S,  bank,  166, 
counterfeiting  U.  S.  coin,  176. 
burning  meeting  house,  186, 
Vessel,  indt.  against  captain  of  for  bringing 
into    port    person   with    infectious 
disease,  531. 
destroying  at  sea  with  intent  to  de- 
fraud underwriters,  indt.  for,  274, 
conspiracy  to  do  same,  373. 

(For  indts.  against  captain  of  ves- 
sel, sec  "  Captain"  see  also 
"  Misconduct  of  Officers"  "Slav 
IVade,"  itc.) 


694 


INDEX. 


(For  indts.  connected  with  revolt 
on  vessel,  see  "  Revolt") 
Vi  et  armis,  how  far  essential,  9. 
Violation  of  license  laws,  see  "  Tippling.'" 
Virginia,  commencement  and  conclusion  of 
indt.  in,  24. 
Indictments  in  : 

forgery  of  a  note  of  a  bank  in  another 

state,  169. 
inducing  a  witness  to  withhold  his 
evidence  as  to  the  execution  of  a 
deed  of  trust,  326. 
violation  of  license  laws,  476. 
selling  lottery  ticket,  486. 
disturbing  a  religious  meeting,  493. 
against  an  uncle  and  niece  for  an  in- 
cestuous marriage,  as  a  joint  of- 
fence, 585. 
Voluntary  escape,  see  "  Escapes," 
Vote,  giving  double  at  election,  indt.  for,  596. 
Voter,  indt.    against  for    false  swearing  at 

election,  307. 
Voting,  illegal  at  election,  indt.  for,  596, 

w 

Wages,  conspiracy  to  raise  the  price  of,  na- 
ture of  offence,  382,  n. 
indt.  for,  382. 
Wagon,  hauling  away  and  riot,  &c.,  indt. 

for,  490. 
Wagons,  permitting  to  obstruct  streets,  indt. 

for,  409. 
Warrant,    obstruction    of   service    of,    see 

"  Writ." 
Water-courses,  nuisances  to,  notes  concern- 
ing, 402. 
indts.  for  obstructions  to,  415. 


Water-course,  indt.  against  a  town  for  suffer- 
ing it  to  be  corrupted,  461. 
Weight,  indt.  for  selling  by  false  weight,  224. 
Wife,  conspiracy  to  sell,  indt.  for,  586,  n. 
Witness,  endeavour  to  corruptly  influence, 
indt.,  324. 
endeavour  to  entice  to  withdraw  from 

a  prosecution,  indt.,  325. 
endeavour  to   persuade  not   to  give 
evidence  before  grand  jury,  indt., 
326. 
endeavour  to  induce  to  withhold  his 
evidence  as  to  execution  of  deed  of 
trust,  indt.,  326. 
endeavour  to  suborn  in  a  civil  case 

in  Massachusetts,  indt.,  327. 

endeavour  to  solicit  falsely  to  swear 

a  child  upon  another,  indt.,  321, 327. 

endeavour  to  solicit  to  disobey  a  sub- 

pcEna  to  testify  before  grand  jury, 

indt.,  328. 

conspiracy  to  induce  to  withhold  his 

testimony,  indt.,  401. 
See  "  Perjury,"  ^'Subornation  of  Per- 
jury." 
Woman's  clothes,  dressing  in  and  disturbing 

congregations,  indt.  for,  494. 
Words,  seditious,  indts,  for,  568,  et  seq. 
Workmen,  conspiracy  by  to  raise  price  of 
wages,  indt.  for,  382. 
pleading  of  same,  382,  n. 
conspiracy  by  to  prevent  their  mas- 
ters   from  employing   apprentices, 
indt.  for,  387. 
Writ,  obstructing  service  of,  indt.  for,  507- 

10. 
Writing,  how  to  be  set  out  in  forgery,  &c,, 
130,  545. 


WHARTON'S 
AMERICAN    CRIMINAL    LAW. 


LATELY  PUBLISHED  BY 

KAY  &  BROTHER, 
LAW   BOOKSELLEES, 

No.    183i    MARKET    STREET,    PHILADELPHIA:  — 

A  TREATISE  on  the  Criminal  Law  of  the  United  States,  comprising  a 
Digest  of  the  Penal  Statutes  of  the  General  Government,  and  of  Massa- 
chusetts, New  York,  Pennsylvania,  and  Virginia:  with  the  Decisions  of 
Cases  arising  upon  those  Statutes  ;  together  with  the  English  and  American 
Authorities  upon  Criminal  Law  in  general.     In  one  octavo  volume. 

BY  FRANCIS  WHARTON. 


REC  OMMEND  ATIONS. 


From  the  Chief  Justice  of  the  United  States. 

Washingtox,  January  26,  1847. 
Gextlesies: — I  have  looked  with  some  care  into  Wharton's  American  Criminal  Law, 
which  you  were  kind  enough  to  send  me. 

It  gives  me  pleasure  to  say  that,  in  my  opinion,  it  is  a  work  of  much  merit.  Ita  refer- 
ences to  different  State  Laws  and  decisions  in  criminal  cases,  and  more  especially  to  de- 
cisions made  by  the  Courts  of  the  United  States  upon  the  laws  of  the  United  States,  give 
it  a  peculiar  value  to  the  American  Bench  and  Bar,  which  no  English  work  can  possess, 
and  must,  I  think,  procure  for  it  the  general  patronage  and  support  of  the  Profession. 

R.  B.  TANEY. 

Messrs  Kai  &,  Bhotuer,  Philadelphia. 


From  Chancel/or  Kent. 

Wharton^s  American  Criminal  Law. — I  have  examined  the  whole  work,  turned  over 
every  page,  and  read  a  very  considerable  part  of  it,  and  I  consider  it  a  work  of  tlie  highest 
utility,  and  admirably  executed.  There  was  no  work  on  American  Law  more  wanted,  and 
it  will  be  generally  called  for,  studied,  and  adopted.  I  congratulate  you  on  the  publication 
and  undoubted  success  of  a  work  of  so  much  labour,  industry,  and  judgment. 

Ncio  York,  Aov.  0,  184G. 


From  Mr.  Justice  Grier,  of  the  Supreme  Court  of  the  United  States. 

Messrs  Kay  <fe  Bkotiiku  : 

Vou  had  the  kindness  some  time  ago  to  send  me  a  copy  of"  Wharton's  Criminal  Law." 
Mv  engagements  have  been  such   as   to  prevent  a  close   and  critical  examination  of  the 

(I) 


V.IIAKTON's    AMERICAN    CRIM!:.'AL    LAW, 

work  ;  hut  I  have  had  occasion  to  consult  it  with  great  advantage  several  times  in  the 
course  of  my  oflicial  duties.  A  work  of  this  kind,  on  Criminal  Law,  which  would  afford  a 
s^'nopsis  of  the  decisions  of  the  Courts  of  the  United  States,  and  of  the  several  States,  con 
nectcd  with  the  English  cases,  was  much  needed.  The  execution  of  the  work  you  have 
just  jjublishcd,  reflects  great  credit  on  its  author  for  his  learning  and  industry,  and  I  have 
no  doubt  it  will  receive  the  approbation  and  patronage  of  the  Profession. 
Wasliington,  Jan.  4,  1847. 


From  Chief  Jitif ice  Gibson. 

Messrs  Kat  &  Brotheh  : 

Mr.  Wharton's  American  Criminal  Law,  which  you  sent  me  some  time  since,  I  find  to 
be  an  excellent  book.  The  plan  is  judicious,  and  its  execution  able.  As  a  book  of  refer- 
ence the  volume  will  be  a  valuable  addition  to  the  American  Lawyer's  librarj'. 

Phil(tdclj)hiu,  Januarij,  1847. 


From  iltt  Hon.  John  C.  CcUionn. 

Fon-r  Hill,  23  March,  1847. 
I  have  devoted  the  first  leisure  I  had,  since  my  return  from  Washington,  to  examining 
Wharton's  American  Criminal  Law.     I  regard  the  subject  as  one  of  much  importance 
and  take  great  pleasure  in  saying  that,  in  my  opinion,  the  arrangement  and  execution  of 
the  work  do  the  author  great  credit. 


From  ilie  llun.  Edivard  King. 

Messrs  Kat  &  Biiotiieh  : 

I  have  great  pleasure  in  acknowledging  the  receipt  of  a  Treatise  on  the  Criminal  Law 
of  the  United  States,  by  Francis  Wharton,  Esq.  I  regard  the  work  as  one  of  peculiar 
merit;  admirably  suited  to  furnish  clear  and  precise  ideas  of  the  state  of  the  Criminal  Law, 
not  only  to  the  student,  but  to  the  more  matured  practitioner.  I  shall  be  much  mistaken 
in  my  judgment  if  it  should  fail  to  secure  the  gcnei'al  approbation  of  the  Profession. 

Fhiladclphia,  Nov.  28,  1846. 


Fro7n  Simon  Grcenlcaf,  L.  L.  D.,  Professor  of  Law  in  Harvard  UnircrsHy. 

C'AJiiiUiBGi;,  14  April,  1847. 
Mkssus  Kay  &  Bkotiikh  : 

I  have  looked  over  Mr.  Wharton's  Treatise  on  American  Criminal  Law  with  as  much 
attention  as  my  avocations  would  permit,  and  think  that  for  cfearness  of  method,  compactness 
and  elegance  of  finish,  it  will  prove  most  acceptable  to  the  Profession.  We  have  no  similar 
Treatise ;  and  to  j)ractitioners  in  the  Criminal  Courts  this  iriinual  must  be  of  great  use. 


Fro)n.  t!ic  North  AiHCricnn,  Sepicmber,  1846. 

Wharton's  American  Criminal  Law  is  one  among  many  evidences  of  the  improvements 
introduced  by  the  Kays  in  the  style  of  publishing  law  books.  They  have  redeemed  this 
branch  of  our  scientific  literature  from  the  dingy  jiaper  and  battered  type  in  which  it  was 
so  long  buried  ;  and  over  the  clear  i)ageH  of  their  7)ublicatlons,  the  professional  student  re- 
joices in  the  exemption  from  the  dangers  heretofore  incurred  from  the  war  against  eyes  so 
long  waged  against  lawyers.  That  this  work  is  far  in  advance  of  any  hitherto  published 
in  this  country  uj)on  Criminal  Law,  will  not  be  gainsayed  by  any  one  who  has  examined  it ; 
but  we  regret  to  find  the  statutes  of  but  four  States  incorporated.  A  future  edition  will 
doubtless  comprise  a  perfect  review  of  American  law  in  all  the  States — that  is,  in  all  where 
they  boast  a  j>cnal  system  beyond  the  jurisdiction  of . I udge  Lynch.        *  *  *  * 

'I'he  work  before  us  is  important,  liecause  it  is  the  first  valuable  effort  to  instruct  our 
pcoi)le  that  there  exists  an  American  Criminal  Code.  We  have  too  often  been  heretofore 
administering  English  Criminal  law,  harsh,  bloody  and  reckless  as  are  its  sj)irit  and  |)rinci- 
ples;  and  Eu'^lisli  decisions  have  too  often  tinged  American  law  with  the  Briush  temper. 


PU2LISII2D    BY    KAY    AND    CnOTIIRR,  PIIILAnKLnnA. 

We  have,  it  is  vain  to  deny  it,  a  common  law  of  our  own,  arisini^  from  the  temper,  condi- 
tion and  principles  of  our  people.  For  instance,  though  (shitty  and  Russell,  Archbold  and 
Roscoe,  recognize  the  right  at  common  law  of  the  husband  to  chastise  his  wife,  what  Ameri- 
can judge  would  dare  to  administer  the  law  in  accordance  with  such  principles'!  We  have 
an  American  code,  not  merely  arising  from  statute,  but  from  custom  and  necessity ;  and 
tJic  great  difficulty  has  been  that  no  attempt  has  hitherto  been  made  to  embody  and  har- 
monize it.  We  find  this  deferred  duty  performed,  and  admirably  too,  by  Mr.  Wharton. 
In  giving  this  volume  to  the  Profession  he  has  not  merely  paid  the  tribute  which  all  lawvcrs 
arc,  by  high  authority,  said  to  owe  it ;  but  he  has  contributed  vastly  to  the  important  work 
of  erecting  a  system  of  Criminal  Law,  in  its  leading  principles  common  to  the  entire  Republic, 
and  worthy  the  advances  made  by  the  American  people  in  the  science  of  government. 

In  a  careful  examination  of  this  work,  we  noted  down  many  points  worthy,  as  it  seemed 
to  us,  the  consideration  of  the  Public  as  well  as  of  the  Profession ;  but  we  have  already  tran- 
scended the  limits  which  a  regard  for  the  general  character  of  our  journal  assigns  us  for  such 
a  subject.  Let  us  speak  of  the  work.  We  commend  it,  with  all  emphasis,  to  the  Profes- 
sion. In  its  arrangement,  its  mode  of  treating  the  subjects  considered,  its  citation  of  authori- 
ties upon  disputed  points,  in  short,  in  all  that  a  practitioner  in  a  Criminal  Court  needs,  we 
consider  it  by  far  the  best  work  within  reach  of  the  American  lawyer.  It  manifests  great 
industry  in  the  collection  of  authorities,  and  great  ability  in  their  collation ;  and  embodies  a 
mass  of  information,  condensed  and  arranged  with  a  skill  no  where  else  to  be  found.  He 
must  be  singularly  elevated  above  the  ordinary  necessities  of  the  legal  Profession,  to  whom 
this  work  is  not  indLspensable. 


From  HurU's  Merchant's  Magazine,  February,  1847. 
Wharton's  American  Criminal  Law. — Such  a  work  as  this  has  long  been  a  desideratum 
with  the  Profession.  The  works  of  Barbour  and  the  Davis's — the  only  American  treatises, 
strange  to  say,  attempted,  upon  the  same  subject — amount  to  simple  examinations  into  the 
duties  of  justices  of  the  peace,  and  as  such  are  beneficial  only  to  those  who  stand  in  need 
of  the  most  elementary  expositions  of  Criminal  Law.  The  book  of  Mr.  D.  Davis,  it  is  true, 
also  goes  to  enlighten  citizens  as  to  their  office  when  called  upon  to  act  as  grand  jurors ; 
J-.ut  this  scarcely  enlarges  its  sphere  of  usefulness.  Practitioners  at  the  Bar  have  been 
hitherto  obliged,  for  their  part,  to  rely  upon  the  labours  of  Chitty,  Russell,  Archbold,  and 
Roscoe,  who  give  us  the  old  crown  law,  which  the  British  judicial  decisions  added  to  it — a  code, 
'.vhich  every  day  causes  to  diHer  more  and  more  from  our  own,  which  is  the  offspring  of  freer 
institutions  and  a  larger  personal  liberty.  The  ordinary  expedient,  of  compensating  for  the 
defects  of  these  writers  by  a  supply  of  domestic  foot-notes  and  references,  has  become  alto- 
gether insufficient;  since  the  decisions  of  our  Courts  have  so  increased  in  number  as  to  be 
often  of  really  more  importance  than  the  English  text  upon  which  they  profess  to  comment. 
It  is  on  this  account  that  the  work  now  before  us,  has  been  so  sincerely  welcomed.  Its 
author  is  Mr.  W^harton,  a  gentleman  whom  Pennsylvanians  have  been  complimenting  for 
iiis  able  performance  of  the  duties  of  prosecuting  attorney  of  the  Commonwealth,  for  Phila- 
delphia. It  is  what  it  professes  to  be — the  Criminal  Law  of  the  United  States  digested,  as 
well  as  compiled,  and  possessing  every  requisite  that  could  be  desired  in  it.  An  able  legal 
writer  has  remarked  upon  the  concluding  book.  On  Trial  and  its  Incidents,  that  the  reader 
will  find  in  ii,  "  the  subject,  not  only  masterly  treated,  but  an  amount  of  infonnation  em- 
bodied, divided,  and  digested,  in  a  manner  altogether  unattempted  in  any  previous  work  on 
Criminal  Law,  English  or  American."  This  may  be  said  truly  of  all  of  the  six  books  of 
which  it  is  composed.  It  is,  throughout,  executed  in  a  painstaking  and  industrious,  yet 
finished  and  scholarlike  manner. 


From  the  New  Yoric  Tribune,  November,  1846. 
V./iarton's  American  Criminal  Law. — This  is  a  treatise  on  Criminal  Law  whicli  we 
consider  one  of  the  most  valuable  which  has  yet  been  given  to  the  Public.  It  is  composed 
of  six  books,  lucidly  arranged  and  ably  expounding  the  subjects  on  which  they  treat.  It  is 
a  volume  valuable  not  only  to  the  student  and  professional  advocate,  but  also  to  every  citi- 
zen desirous  of  becoming  acquainted  with  Criminal  jurisprudence.  In  the  few  treatises  we 
already  possess,  the  attention  of  the  authors  has  been  more  confined  to  ihe  examination  of 
local  statutes  defining  particular  oflences  than  api)lied  to  the  investigation  of  general  princi- 
ples; but  the  present  volume  not  onlv  gives  in  ample  detail  the  statutes  defining  olfences 
(3) 


WHARTON  S    AMERICAN    CRIMINAL    LAW. 

where  the  common  law  is  silent,  but  shows  what  alterations  and  restrictions  affect  tlio 
common  law,  and  are  peculiar  to  the  government  under  which  we  live.  The  judicial  de- 
cisions on  mooted  points  of  the  various  Federal  and  State  Courts  are  set  forth  with  much 
discrimination,  and  in  such  a  manner  as  to  show  the  reasons  governing  the  adjudication  of 
the  subject  in  dispute.  The  examination  of  what  offences  are  indictable,  and  in  what 
court  cognizable,  of  principal  and  accessary,  and  an  inquiry  into  the  powers  of  the  respec- 
tive State  jurisdictions,  of  the  form  and  finding  of  the  indictment,  of  demurrers  and 
pleas,  compose  the  first  book.  The  second  and  third  books  relate  to  evidence  and  offences 
against  the  person ;  the  fourth  and  fifth  books  to  offences  against  society ;  and  the  sixth  to 
the  trial  and  its  incidents.  The  multifarious  subjects  treated  of  in  the  different  books,  are 
accompanied  with  references  to  the  judicial  decisions  sustaining  the  text.  Those  references 
are  very  copious,  comprising  the  latest  decisions  of  the  English  and  American  courts. 
Among  the  mass  of  valuable  and  well-digested  information,  will  be  found  much  that  is 
peculiar  to  the  work  itself,  and  which  supplies  the  deficiencies  of  other  treatises.  It  is 
peculiarly  acceptable  to  the  inexperienced  practitioner,  who  can  acquire  more  knowledge 
from  its  perusal,  than  he  could  otherwise  obtain  by  the  loose  reading  and  practice  of  years. 
It  occupies  the  same  relative  position  to  our  Criminal  Law,  that  is  occupied  by  Russell, 
Roscoe,  and  Archbold,  in  British  jurisprudence ;  and  we  hail  with  pleasure  and  with  pride 
the  existence  of  a  work  bearing  the  impress  of  American  genius,  and  which  in  legal  litera- 
ture will,  we  doubt  not,  be  found  in  the  library  of  every  lawyer,  beside  the  productions  of  a 
Story  and  a  Kent.  We  understand  that  the  author  is  but  a  young  man,  who  has  thus 
given  to  his  professional  brethren  and  the  Public  this  evidence  of  a  matured  and  powerful 
mind ;  and  much  do  we  hope  that  the  success  which  will  attend  the  present  work  will 
prove  an  incentive  to  renewed  exertions  in  his  legal  research  and  literary  labours. 


From  the  Legal  IntelUgencer,  August,  1846. 

Whartmi's  American  Criminal  Law. — This  work  is  the  production  of  a  highly  accom- 
plished criminal  pleader,  whose  recent  services  in  the  conduct  of  the  public  prosecutions  of 
the  county  of  Philadelphia  secured  for  him  the  licst  regards  of  the  community,  and  have 
prepared  his  professional  brethren  to  accept  his  book  as  one  of  full  authority  in  the  law. 

It  is  the  first  and  only  thorough  treatise  on  the  Criminal  Law  of  our  country  that  has 
found  its  way  to  the  press.  It  includes  not  only  the  descriptions  and  distinctions  of  the 
several  classes  of  crime,  as  known  to  the  common  law  of  England,  and  as  modified  by  the 
statutes  of  the  Union  or  of  the  States,  with  an  analytical  and  well  expressed  summary  of 
the  decisions  to  which  they  have  led ;  but  it  enters  largely  into  the  departments  of  practice, 
pleading,  and  evidence.  Thus,  the  first  book  treats  of  indictments,  the  duties  and  power 
of  grand  juries,  and  the  rights  of  the  accused ;  the  second  is  a  liberal  abstract  of  the  prin- 
ciples and  minor  rules  of  proof;  the  three  next  are  appropriated  to  the  consideration  of 
offences  against  the  person,  against  property,  and  against  society,  under  thirty-eight  distinct 
titles ;  and  the  sixth  is  devoted  to  the  modes  of  trial,  and  all  its  incidents. 

This  last  will  be  found  peculiarly  valuable  to  the  practitioner ;  especially  the  chapter  on 
the  motion  for  new  trial,  a  topic  very  imperfectly  discussed  in  other  treatises,  but  which  in 
Mr.  Wharton's  hands  is  as  full  of  interest  as  it  is  confessedly  important. 

The  whole  work  bears  the  marks  of  a  clear,  well  disciplined,  and  practical  mind,  entirely 
famiiar  with  all  the  details  and  difficulties  of  the  subject,  leaving  nothing  to  d6ubtfiil  infer- 
ence, but  marking,  by  clear  and  copious  quotations,  the  precise  fine,  beyond  which  pre- 
cedents cease  to  guide,  and  resort  must  be  had  to  analogy  or  induction.  We  hazard  nothing 
in  the  remark,  that  hereafter  the  treatise  of  Mr.  Wharton  will  be  a  manual  for  every  prac- 
titioner in  our  Criminal  Courts. 


From  the  Boston  Law  Reporter,  January,  1847. 
Wlmrton's  American  Criminal  Law. — We  hasten  to  say  that  we  think  it  a  book 
worth  its  price  to  the  criminal  practitioner.  It  contains  a  much  fuller  collection  of  Ameri- 
can cases  than  Russell,  with  the  able  editing  of  Mr.  Mctculf  at  an  early  day,  nnd  of  Mr. 
Sharswood  in  1844 ;  or  than  ('bitty,  with  Mr.  Perkins's  valuable  notes,  (ed.  1841)  ;  or  than 
Roscoe  in  Mr.  Sharswood's  edition  of  1840.  Neither  is  it  an  imitation  or  revamping  of 
any  of  the  treatises  with  which  we  are  acquainted.  It  wants  at  present  a  table  of  cases,  and 
a  better  index,  which,  perhaps,  have  led  to  a  greater  complaint  of  deficiencies  on  our  part 
(4) 


VALUABLE    LAW    BOOKS    PUBLISIIF.B    BY    KAY    AND    GROTIIKR. 

than  really  exists ;  but  with  these,  which  we  trust  the  author  will  by  all  means  supply  in  a 
future  edition,  we  hesitate  not  to  say  that  it  will  be  really  serN'iceable  to  any  one  who  is 
disposed  to  investigate  the  Criminal  Law  of  the  Union. 


From  the  Weiiei-n  Laio  Journal. 
Wharton's  American  Criminal  Law. — This  work,  recently  published  in  Philadeljihia, 
supplies  a  want  which  was  very  much  felt  by  all  engaged  in  the  trial  of  criminal  cases. 
There  has  been  heretofore  no  American  work  upon  Criminal  Law,  so  thorough  in  its  de- 
tails as  to  be  of  general  utility.  This  book  is  intended  to  present  the  Criminal  Law  as  it 
exists  in  the  United  States.  It  treats  of  the  progress  of  the  cause  from  the  arraignment  of 
the  prisoner  to  the  final  judgment;  of  the  duties  of  grand  jurors,  the  indictment,  and  the 
different  offences  punishable  by  law.  Portions  of  the  criminal  statutes  of  the  United  States 
New  York,  Massachusetts,  Pennsylvania  and  Virginia,  are  set  out,  and  references  are  given 
to  such  of  the  English  decisions  as  are  applicable  in  this  Country.  The  decisions  of  all 
the  States  of  the  Union  are  also  embraced,  either  in  the  text  or  the  notes,  and  probably 
none  of  the  American  authorities  have  escaped  the  vigilance  of  the  author.  The  arrange- 
ment is  methodical,  and  the  index  renders  reference  easy.  The  book  bears  evidence  of 
great  research  and  industry,  and  may  be  recommended  as  an  important  addition  to  our  law 
library. 

ALSO,  LATELY    PUBLISHED    BY 

KAY  &  BROTHER,  LAW  BOOKSELLERS  :- 

WATTS  AND  SERGEANT'S  REPORTS,  VOL.  9. 

REPORTS  of  Cases  adjudged  in  the  Supreme  Court  of  Pennsylvania,  by  Frederick  Watts 
and  Henry  J.  Sergeant;  vol.  9,  containuig  the  Cases  decided  in  part  of  May  Term,  1845. 
With  a  general  Index  of  the  principal  matters  contained  in  the  nine  volumes  of  Watts  and 
Sergeant's  Reports,  and  a  Table  of  all  the  Cases  in  the  same.     In  one  octavo  volume. 

N.  B. — The  General  Index  contained  in  the  9th  volume  of  Watts  and  Sergeant's  Reports, 
(preceded  by  the  4th  and  last  edition  of  Wharton's  Digest)  forms  a  complete  Digest  of  the' 
Decisions  of  the  Supreme  Court  of  Pennsylvania,  from  the  commencement  to  the  year  1845  ; 
and  thus  for  years  relieve  the  Profession  from  the  expense  of  paying  once  more  for  matter, 
the  far  larger  portion  of  which  they  already  possess  in  their  Libraries. 


ROBERTS'S  BRITISH  STATUTES  IN  FORCE  IN  PENN- 
SYLVANIA.— SECOND  EDITION. 

A  DIGEST  of  Select  British  Statutes,  comprising  those  which,a  ccording  to  the  Report  of 
the  Judges  of  the  Supreme  Court,  made  to  the  Legislature,  appear  to  be  in  force  in  Penn- 
sylvania, with  some  others ;  with  notes  and  illustrations.  By  Samuel  Roberts,  President  of 
the  Court  of  Common  Pleas  of  the  Fifth  Judicial  District  of  Pennsylvania.  Second  Edition, 
with  additional  notes  and  references  to  English  and  American  Decisions,  giving  construction 
to  these  Statutes,  down  to  the  present  time ;  and  also,  the  Report  made  by  the  Judges  of  the 
Supreme  Court  to  the  Legislature.  By  Robert  E.  Wright,  Counsellor  at  Law.  In  one 
volume,  octavo.     Kay  &  Brother,  Philadelpliia. 


From  the  PennsT/lvania  Law  Journal,  Februart/,  1847. 
A  new  Edition  of  Roberts's  Digest  has  been  for  some  time  a  desideratum.  The  number  of 
British  Statutes  in  force  in  Pennsylvania,  notwithstanding  the  labour  of  the  Revisers  of  the 
(5) 


VALUABLE    LAW    BOOKS    PUBLISHED    BY    KAY    AND    CKCTIIER. 

Civil  Code,  is  still  considerable,  and  the  importance  of  their  careful  preservation  cannot  be 
overrated.  The  Editor  of  the  present  volume  has  carefully  preserved  the  arrangement,  even 
to  the  paging  of  the  original  text;  has  added,  on  tlie  authority  of  the  Supreme  Court,  seve- 
ral Statutes,  which  arc  not  contained  in  the  first  Edition,  and  has  enriclied  the  whole  with 
valuable  Explanatory  Notes  and  References.  The  Report  of  the  Judges  of  the  Supreme 
Court  of  Pennsylvania  is  also  prefixed. 

HOOD  ON  EXECUTORS,  ADMINISTRATORS,  &c. 

A  Practical  Treatise  on  the  Law  relating  to  Registers,  Registers'  Courts.  Orphans' 
Courts,  Auditors,  Executors,  Administrators,  Guardians  and  Trustees,  in  Pennsylvania 
with  Appendixes  of  Acts  of  Assembly,  Forms,  &c.,  and  an  Index.  By  Samuel  Hood,  of  the 
Philadeljihia  Bar.     In  one  large  volume,  octavo.     Kay  &  Brother,  Philadelphia. 


From  tlic  llun.  Judgt  Ellis  Leiuib: 

Laxcastkh,  Feb.  15, 1847. 

Hood  on  Executors. — The  People  and  Profession  are  deeply  indebted  to  Mr.  Hood  for 
his  valuable  work  relating  to  the  Registers'  Courts,  Orphans'  Courts,  Executors,  &c.  The 
practice  in  this  branch  of  jurisprudence  is  so  moulded  by  our  peculiar  legislation  and 
usages,  that  we  look  in  vain  into  English  books  for  light.  The  work  of  Mr.  Gordon  was  of 
great  value,  but  in  the  twenty  years  which  have  elapsed  since  it  made  its  appearance,  an 
entire  revolution  has  taken  place,  and  a  new  work  on  the  subject  became  a  matter  of  urgent 
necessity.  This  book  supplies  the  want,  and  satisfies  the  expectation  of  those  most  con- 
versant with  the  subject. 

Death  is  certain,  and  as  sure  as  our  lifeless  bodies  shall  seek  repose  under  the  clods  of 
the  valley,  our  widows  and  orphans  and  their  estates  must  seek  protection  under  the  juris- 
diction of  the  Orphans'  Court.  Every  man  in  society  is  most  deeply  interested  in  the  en- 
lightened and  faithful  administration  of  this  branch  of  the  law.  In  this  country  alone,  the 
interests  involved  in  it  are  of  the  highest  importance  in  their  nature,  as  well  as  immense  in 
their  magnitude. 

The  work  is  prepared  with  great  care  and  ability.  No  Pennsylvania  Lawyer  should 
neglect  to  purchase  it ;  it  contains  a  mass  of  useful  knowledge  to  be  obtained  nowhere  else.  It 
is  gratifying  to  perceive  that  the  publishers  have  taken  care  to  present  the  work  in  a  dress 
which  recommends  itself. 


From  an  Eminent  and  Experienced  Member  of  the  PittsLurg  Bar. 

Hood  on  Executors. — In  this  age  of  book  making — so  many  publications  are  thrown  off 
by  steam,  and  we  arc  so  oppressively  taxed  by  all  sorts  of  levies  and  temptations — that  our 
first  impulse  is  to  resist  all  expenditures  that  we  can  avoid.  Tliis  is  especially  true  as  to 
Law  Ijooks.  The  tools  of  the  trade,  if  all  that  arc  oficred  were  purchased,  would  come  to 
znore  than  the  revcrmc  of  the  Profession.  Some  selection  being  strictly  necessary,  any  notice 
that  tends  to  limit  purchasers  to  works  rcalUi  useful  and  valuable,  may  be  of  general  service. 

'i'here  is  no  substitute  for,  or  rival  to  "  Hood  on  Executors"  in  our  Lilirarics,  for  the  use 
of  the  student  or  lawyer  of  Pennsylvania.  "  Gordon  on  Decedents"  was  edited  before  the 
Kovised  Code,  and  is  therefore  anti(juated. 

The  whole  Orphans'  Court  system  of  this  State  is  original,  peculiar,  and  of  modern 
erection  by  eminent  Judges.  Its  basement,  laid  in  the  leading  case  of  M'Pherson  v.  Cun- 
lilfe,  by  the  lamented  Justice  Duncan,  has  been  built  up  in  strength  and  symmetry  by  his 
colleagues  of  that  era,  and  his  successors;  at  the  head  of  whom  (and  indeed,  among  the 
liighest  of  any  State  or  Nation,  in  his  giant  proportions  as  a  lawyer  and  logician)  stands 
that  colleague,  our  present  Chief  Justice.  The  outline,  elevations  and  plans  of  the  system 
are  presented  in  this  'i'reatise  in  form  and  shajjc,  distinct  and  definite  to  all. 

'i'he  subject  matter  of  the  book  is  nearest  to  "  vieiis  business  and  bosoms."  The  Work 
sliould  be  ill  the  lianiis  of  every  Magistrate  and  Olllcer  of  our  Courts,  and  of  every  adminis- 
trator of  his  own  or  of  others'  estates — and  who  is  not  one  of  these  ]  Many,  even  the  most 
judicious,  in  their  best  efforts  of  settlement  prove  to  be  but  Executors  dc  son  tort,  that  is  in 
their  own  wrong.  He  who  would  most  surely  escape  this  perilous  olhce,  had  better  choose 
for  his  guide,  "  Hood  on  Executors." 


•    .»•••• 


*  <«. 


f 


\ 


f 


LAW  LmRAinr 

iimVEKbilV  OF  CALIFOKNU 
LOS  AJVGHLES 


/ 


i 


\ 


UC  SOUTHERN  REGIONAL  LIBRARY  f  ACILIP/ 

AA    000  869  332    7 


tr 


y? 


/  ^:. 


1/ 


^■ 


•y 


s 


\ 


c-x 


./ 


♦# 


y 


I 

i 


.•^ 


p 


.A 


